Decided on March 16,1961



- (1.) THIS is a suit by am auction-purchaser for a declaration that the auction sale held on 5 December 1957, and the agreement for sale of the same date are null and void and liable to be set aside and cancelled respectively, on the ground of fraud, misrepresentation and for suppression of material defect in the seller's title by the defendants nos. 1 to 4 and for want of saleable interest in the properties sold. The facts out of which this action arises are as follows:
(2.) ON or about the 4 December 1956 Dharam Chand Raniwala and a Motilal Jhunjhunwala jointly filed a suit being suit No. 3032 of 1956 of this Court against Aminuddin Ahmed alias Aftabuddin Ahmed for recovery of Rs. 5,000/- for money lent and advanced on a promissory note. At the time of the filing of the above suit Dharam Chand and Motilal also held a registered mortgage from Aminuddin on his 10/l8ths share in premises Nos. 12a and 12b Fullbagan Road and 23/a and 23/b, Mofidu Islam Lane which had by then become due and payable. It appears that a mortgage suit was not brought as it had to be filed in the Alipore Court on payment of advalorem duty. On 7 December 1956 a consent decree was passed in suit No. 3032 of 1956 for Rs. 5,000/ -. From the Terms of Settlement filed it appears that Aminuddin Ahmed agreed to pay the decretal amount out of the sale proceeds of his undivided 10/18ths share in the properties mortgaged which was to be sold by Mackenzie Lyall and Co. , by public auction to the highest bidder on proper advertisement. The decree provided that the auctioneers would pay the decretal amount as provided in the decree and retain all costs incurred for such sale and their commission out of the sale proceeds and thereafter pay the balance to the judgment debtor Aminuddin Ahmed. It was further provided that Messrs. Mackenzie Lyall and Co. would be competent to execute a conveyance for the sale on behalf of Aminuddin Ahmed if he refused or neglected to do so and in case Mackenzie Lyall and Co. , refused to act as auctioneer, Dharam Chand Raniwala and Motilal Jhunjhunwala, the plaintiffs in that suit would be competent to) act as such auctioneers on the same terms and conditions and with like powers therein provided.
(3.) AT the time of this consent decree the defendant Aminuddin Ahmed appeared in person unrepresented by any Solicitor and from the terms it appears also that he waived the service of the writ of summons. After passing of the consent decree it appears that on 17 August 1956 a notification of sale and conditions of sale of the aforesaid properties was published by Messrs Mackenzie Lyall and Co. under instructions of Messrs. S. N. Mukherjee and Co. , Solicitors for Dharam Chand Raniwala and Motilal Jhunjhunwala in terms of the consent decree. I find that the sale so advertised and fixed for 17 August 1956 was in fact not held on that date and thereafter on 5 December 1957 the properties were again advertised for auction by Mackenzie Lyall and Co. , on the same terms and conditions as before, under instructions from Messrs. S. N. Mukherjee and Co. the Solicitors for the decree-holders. This auction was duly held on 5 December 1957 when Sk. Moula Buksh and S. M. Rashid were jointly declared the highest bidders and purchasers of the right, title and interest of Aminuddin Ahmed in his undivided 10/18ths share of premises Nos. 12a and 12b Fulbagan Road for Rs. 17. 000/ -. The auction-purchasers duly paid Rs. 4,250/ - being 25 per cent, of the purchase price to Mackenzie Lyall and Co. , and entered into an agreement with them in accordance with the form attached to the notification of sale and the conditions of sale. Thereafter on 30 December 1957 before the date of completion had arrived the auction-purchasers repudiated the agreement inter alia on the ground that during investigation of title they had discovered that before the auction the judgment-debtor Aminuddin Ahmed had entered into agreements with third parties which made the sale void, inoperative and not binding upon them and further the defendants had willfully, fraudulently and with ulterior motive suppressed the aforesaid prior assignment from the notification of sale and that the notification of sale misrepresented the facts relating to the subject matter of sale thus making it also void, inoperative, invalid and not binding on them. Further the purported sale held thereunder was void for fraud and for want of saleable interest of the defendant No. 3 in the properties sold. The plaintiffs therefore demanded refund of the 25 percent, of the purchase money deposited by them from Mackenzie Lyall and Co. , as money had received and/or upon total failure of consideration. On 3 January 1958 the auction-purchasers through their Solicitor Mr. S. M. Chatterjee again wrote to Mackenzie Lyall and Co. stating that upon investigation of title it appeared that the judgment-debtor Aminuddin Ahmed had by a registered deed of assignment dated 15 February 1949 assigned his right, title and interest in the premises Nos. 12a and 12b Fulbagan Road and 23/a and 23/b Mofidu Islam Lane, Calcutta for Rs. 10,000/- and that a certified copy of the said deed of 15 February 1949 had been obtained and inspection could be taken thereof. It was further stated that Aminuddin Ahmed thus had no interest in the premises purported to have been sold on 5 December 1957 and as such the sale was void ab initio and his clients were inclined and were prepared to accept the refund of Rs. 4,250/ - deposited with them.;

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