Decided on July 29,1968

Tapesh Chandra Bagchi Appellant
United Bank Of India Ltd. And Ors. Respondents


Pathak, J. - (1.) THIS is a revision petition under Section 115, Code of Civil Procedure, by which the Petitioner has challenged the order dated 4 -4 -1968 passed by the learned Assistant District Judge, Dibrugarh, in Title Exaction Case No. 16 of 1964.
(2.) THE facts of the case in brief are as follows: Opposite Party No, 1, the United Bank of India, Ltd., filed a mortgage suit being Title Suit No. 13 of 1956 against Asit Chandra Bagchi and others for recovery of Rs. 2,24,011 -12 -6 on account of loan with interest. The suit was decreed on compromise on 27 -5 -1958 for Rs. 2,24,011 -78 nP. in terms of the compromise petition filed in the suit. The terms of the compromise inter alia were that the decretal amount with future interest and costs would be paid in course of five years subject to a minimum annual installment of Rs. 42,000 together with interest, that the Defendants would keep Phukanbari T. E. running at their own cost and fully insured against loss by fire or otherwise and that in default of payment or payment of any one of the annual instalments or failure of the observance of the terms mentioned in the compromise decree, the whole of the decretal amount would be due by the Defendants to the Plaintiff -Bank who would be at liberty to execute the decree against the Defendants and to bring the mortgage properties to sale. A final mortgage decree was also passed embodying the terms of the compromise petition. The judgment debtors having failed to satisfy the decree, the decree -holder put the decree into execution in Title Execution Case No. 16 of 1964. In the execution case, the Phukanbari T. E. containing 342.1 B 3 K 15 L of land with trees, buildings, factory houses, leaf -houses, machineries etc., were brought to sale. The judgment debtors filed an objection before the executing Court on a number of grounds, viz., that the sale proclamation was not in accordance with law, that in the sale proclamation the decretal amount was wrongly shown and that no notice was served upon some of the judgment debtors and so on. The objection was, however, rejected by the executing Court and the judgment debtors preferred an appeal being M.A. (F) No. 33 of 1964, which was dismissed by the High Court. Thereafter, the judgment debtors filed another petition on 21 -9 -1967 raising several objections to the sale which was also rejected by the executing Court by its order dated 23 -9 -1967.
(3.) BY his order dated 8 -9 -1967 the learned Assistant District Judge, Dibrugarh sent the sale papers to the Munsiff, Dibrugarh for conducting the sale on 25 -9 -1967, and to report on 30 -9 -1967. Accordingly the auction was held on 25 -9 -1967 and continued till 30 -9 -1967, on which date the safe was knocked down at the highest bid of Rs. 2,38,000 offered by Abhayajan Tea Company (P) Ltd., Opposite Party No. 4. The deposit of twenty five per cent of the bid money was however not made to the, learned Munsiff, the officer conducting the sale. The papers were sent by the officer conducting the sale the same day to the learned Assistant District judge. Before the executing Court, the Petitioner judgment -debtor filed a petition on the same date raising a number of objections to the sale and praying that the highest bid which was too low should not be accepted and fresh proclamation of sale should be issued and the auction purchaser also submitted a petition before the executing Court praying for time till 3 -10 -1961 to deposit twenty five per cent of the bid money as he was not able to deposit the same on that day because that was a Saturday and the Bank was closed early. On the same date, that is, on 30 -9 -1967 the learned executing Court passed an order on his petition directing the auction purchaser to deposit twenty five per cent of the bid money on 6 -11 -1967, that is, on the reopening of the civil Court after the Puja Vacation. On the petition filed by the judgment debtor, the Court ordered for putting up the papers for orders on 6 -11 -1967. Against the said order dated 30 -9 -1967, the Petitioner moved the High Court in Civil Revision No. 99 of 1967. The High Court by its order dated 23 -1 -68 passed in Civil revision No 99 of 1967 remanded the case and directed the learned Assistant District Judge to first dispose of the two petitions filed by the judgment debtors and the auction purchaser and then to come to a decision whether the money was to be accepted or not and after coming to such a decision he should act accordingly. The matter went back to the ;earned Assistant District Judge, who by his order dated 4 -4 -1968 found that the sale was duly conducted and there was nothing on the record to show that there was any fraud or collusion and he held that the money could be accepted and by the same order the learned Assistant District Judge formally accepted the highest bid and declared the highest bidder Abhoyjan Tea Co. (P) ltd., as the purchaser and ordered it to deposit twenty five per cent of the sale money, which was depostical on the same date. The auction purchaser also prayed for permission of the Court to deposit the entire purchase money which the Court permitted. This order of the learned Assistant District Judge is questioned in this revision petition.;

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