AMAL CHANDRA BANERJEE Vs. RAM SWARUP AGARWALLA

JUDGEMENT

(1.) This rule is directed against an order of the learned Additional Judge of Alipur, dated 29th April 1938, under which he dismissed an application which had been filed by the petitioner Amal Chandra Banerjee, in which the latter asked that an execution sale which had been held on 25 February 1937 might be set aside and that he might be allowed a refund of the purchase money which he had paid in his capacity as auction purchaser at the sale. The facts of the case are briefly as follows : Opposite party No. 1 Ram Swarup Agarwalla, obtained a decree in suit No. 1189 of 1935 on the Original Side of this Court. This decree was transferred for execution against the judgment-debtors to the District Court of the 24-Parganas. On 11th September 1936 the decree-holder duly attached some property belonging to the judgment- debtors which comprised premises No. 5, Southern Avenue. He caused a sale proclamation to be issued on 10 January 1937 and on 25 February 1937 the property was put up for sale and purchased by the petitioner subject to certain charges in favour of the Calcutta Improvement Trust and the Equitable Insurance Company Ltd. This sale was confirmed on 31 March 1937 and the petitioner obtained symbolical possession on 19 May 1937.

(2.) On 25 May 1937, the petitioner was served with a copy of the plaint in a suit which had been instituted by the Calcutta Improvement Trust for the enforcement of their mortgage upon the property and in that plaint there was a statement to the effect that the premises situated at No. 5, Southern Avenue had already been purchased on 8 February 1937 by a firm named Ram Kissen Das Bagri in Execution Case No. 215 of 1936. The petitioner thereupon caused enquiries to be made and he ascertained that the facts stated in the plaint of the Calcutta Improvement Trust were correct and that Ram Kissen Das Bagri was actually in possession of the premises. The petitioner then proceeded on 15 June 1937 to file the petition in the Court of the first Munsif at Alipur to which reference has already been made.

(3.) As pointed out by the learned Additional Judge it is almost impossible to follow the reasoning of the learned Munsif but, as far as his judgment can be understood, he appears to have treated the petitioner's application as one under Order 21, Rule 91, Civil P.C., and he found that the judgment debtor had no saleable interest in the property sold. The application was filed about three and a half months after the date of the sale but the learned Munsif held that it was not time barred as the petitioner had been prevented by the fraud of the decree- holder from knowing about the earlier sale. He therefore allowed the application and set aside the sale which had been held on 25 February 1937. On appeal the learned Additional Judge held that it had not been established that the decree-holder, Ram Swarup Agarwalla, had committed any fraud. He therefore found that the petitioner was unable to get the benefit of Section 18, Limitation Act, and that the application was time barred. He agreed however with the first Court in holding that the judgment-debtor had no interest in the property after the first sale, which could be described as a saleable interest. In this Court it is admitted that the property sold on 25 February 1937 was identical with that which was sold at the previous sale. It further appears that both the sales were properly held in the course of regular execution proceedings.