DASURAM MIRZAMAL Vs. BALCHAND SURAN
LAWS(GAU)-1970-3-8
HIGH COURT OF GAUHATI
Decided on March 02,1970

Dasuram Mirzamal Appellant
VERSUS
Balchand Suran Respondents

JUDGEMENT

P.K. Goswami, C.J. - (1.) THIS appeal is directed "against an order of the learned Subordinate Judge passed on 18 -5 -1064 whereby he set aside a sale under Order 21, Rule 90, Code of Civil Procedure, holding that the judgment -debtor suffered great loss and substantial -injury," due to material irregularity in proclaiming the attachment of the property and in proclaiming the sale of the same.
(2.) THE decree -holder who was the auction purchaser is the Appellant before us. The Respondent -judgment -debtor examined six witnesses before the Court below including himself by commission. The decree -holder examined eight witnesses on his behalf. The learned Subordinate Judge held that the attachment was irregular and invalid as no copy of the attachment was served in the Court house and in the office of the Collector. He further held that there was material irregularity in not publishing the sale by beat of drum or any such customary manner and for not serving any copy in the Court house. - He also held that there was non -compliance of the provisions of Order 21, Rule 68, Code of Civil Procedure in holding the sale on 6th April 1959 within thirty days of 10th March, 1959, the date of affixing the copy of the sale proclamation on the Court house at Mangaldai, although the sale was ordered by the Subordinate Judge at Gauhati. The learned Subordinate Judge, after noting the above as material irregularities, dealt with the question whether any substantial injury was caused to the judgment -debtor on account of the said sale and held in his favour. The facts briefly are that the decree -holder had a decree against the judgment -debtor for a sum of Rs. 41,000 and odd, in execution of which he prayed for sale of the judgment -debtor's immovable property situated at Kharupatia in Mangaldai sub -division. The Subordinate Judge at Gauhati, who passed the sale order, entrusted the Munsiff at Mangaldai for conducting the sale. The judgment -debtor was served with the writ of attachment as well as the notice for settlement of terms of sale proclamation, together with a copy of the proclamation of sale, as is clear from his endorsements in his own hand -vide Exts. A(1), 3.(1) and C(1). The judgment -debtor for the first time appeared in Court on 7 -9 -1957 praying for stay of execution till the disposal of his appeal in the Supreme Court against the decree. He is therefore, in the know of the execution proceedings and was represented by a lawyer in the same. The judgment -debtor's main objections are that the attachment effected under Order 21, Rule 54, Code of Civil Procedure is irregular, that the proclamation did not contain a proper description of the property and that the sale took place on 6 -4 -1959 before the expiry of thirty days from the date of affixing a copy of the sale proclamation on the Court house, assuming that the Court of the Munsiff is the proper Court for the purpose although the judgment -debtor submits that the appropriate Court was the Court of the Subordinate Judge where no copy of the sale proclamation has been affixed. The sale commenced before the Munsiff on 6th April 1959 and continued on 7th, 8th, 11th, 13th and 16th April 1959, on which date one Sitaram (D. W. 8) offered a bid of Rs. 33000/ - on behalf of the decree -holder and the sale was knocked down in his favour as the highest bidder. The sale report from Munsiff, Mangaldai was received by the Subordinate Judge at Gauhati on 20th April 1959 and the judgment -debtor made an application under Order 21, Rule 90, Code of Civil Procedure on 22nd April 1959 for setting aside the sale.
(3.) ON the questions of law raised in this appeal, it is necessary to see whether there was any substantial injury which resulted from the sale in question to the judgment debtor on account of any material irregularity. At this stage, we may read Order 21, Rule 90, Code of Civil Procedure as amended in Assam: Where any immovable property has been sold in execution of a decree, the decree -holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him, as required by Rule 22 of this Order: Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure. (ii) That no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at the time in respect of the defect relied upon." It is therefore, clear that the scope of Rule 90 is that the sale may be set aside on the ground of material irregularity if the Court is satisfied upon the facts proved before it that the applicant has sustained substantial injury by reason of the material irregularity found. We are not required to consider the other grounds mentioned in Rule 90 in the instant case. The question will therefore, arise whether there has been any material irregularity in publishing or conducting the sale. The sale, as is well known, is preceded by a proclamation under Order 21, Rule 66 and Order 21, Rule 67 prescribes the mode of making a proclamation and the manner is as prescribed by Order 21, Rule 54 as in the case of attachment. Order 21, Rule 68 may be read, omitting what is not necessary for the purpose of this case: Time of sale: X X X ...no sale hereunder shall without the consent in writing of the judgment -debtor, take place until after the expiration of at least thirty days in the case of Immovable property...calculated from the date on which the copy of the proclamation has been affixed on the court -house of the Judge ordering the sale. Order 21, Rule 69 refers to adjournment or stoppage of sale. The above are the material provisions which need to be considered in deciding the controversy raised in this appeal.;


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