Decided on December 17,1970

Saraju Bala Basu Appellant
Trustees Of Calcutta Insurance Staff, Provident Fund Respondents


P.N. Mookerjee, J. - (1.) This appeal is directed against an order of the learned Subordinate Judge rejecting the Appellant's application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside an auction sale. The appeal arises under the following circumstances.
(2.) The Respondent No. 1, in execution of a mortgage decree against the Respondent No. 3, put up to sale the disputed property belonging to the mortgagor, the Respondent No. 3, and the same was purchased at the said sale by the Respondent No. 2. The Appellant was an unsecured creditor of the Respondent No. 3 and, for realizing her dues, she filed Money Suit No. 16 of 1953 in the Fourth Court of the Subordinate Judge at Alipore and the decree obtained by her in the said suit was put into execution in Money Execution Case No. 29 of 1955. In the said suit, the Appellant obtained an order for attachment -before -judgment of the above property and, in the decree obtained by her, the said attachment was directed to subsist and, thereafter, it appears, in the above Money Execution Case, steps, were taken for putting the said property to sale on a sale proclamation to which some detailed reference will be made hereinafter.
(3.) The impugned mortgage sale in the instant case appears to have been held on January 3, 1956, and the Appellant's application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside the said sale was made on March 15, 1956. The grounds - taken by the Appellant in her said application were to the effect that the disputed property which was worth Rs. 55,000, was sold and auction -purchased, as aforesaid, for a sum of Rs. 28,000 and the valuation given in the relative sale proclamation by the decree -holder concerned, namely, the Respondent No. 1, was only Rs. 25,000 and odd ; that the Appellant had a decree against the judgment -debtor -represent No. 3 for Rs. 13,427 -4 -0 for which, as stated above, the aforesaid property was attached by her; that, as a result of the above mortgage sale, the Appellant's interest was affected and that she had suffered substantial injury on account of material irregularities and fraud committed in the above mortgage execution case and sale proceeding ; that, prior to March 14, 1956, the Appellant could not have any knowledge of the disputed sale or the connected sale proceeding on account of fraud on the part of the Respondents who were acting in collusion in the matter, and that, accordingly, her above application under Order 21, Rule 90 of the Code of Civil Procedure was saved from the bar of limitation.;

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