MAHAMMAD FAZLUL KARIM Vs. AHMAD MAHAMMAD PARUK

JUDGEMENT

(1.) This is an appeal against an order made by my learned brother Panckridge, J., on 21st July 1932, by which he directed that the Registrar might be at liberty to sell the mortgaged properties without reserve in the circumstances which had happened. The facts involved in this appeal, shortly stated, are as follows: The plaintiff obtained a mortgage decree on 14th July 1927, and the decree directed that the Registrar should take the usual accounts on the footing of the mortgage. The Registrar did take the accounts and reported that a sum of one lakh seventy-seven thousand odd hundred rupees would be due and owing to the plaintiff mortgagee on 7 August 1928. Thereafter the final decree was passed and that would be found on pp. 45 and 46 of the paper book. In the final decree there was inserted a provision, as is usually done in the Original Side, that the Registrar should fix a reserved price on the mortgaged properties before the sale was held by him. The Registrar, pursuant to the directions contained in the final decree, called a meeting of the parties and settled the sale proclamation in the presence of the parties. Thereafter, on 23 March 1932, the mortgaged properties were put up to sale and the reserved price not having been reached the sale was adjourned to some date in May 1932. The date of the next sale was 20 May 1932, and on that occasion even the reserved price was not reached. The two sales hereinbefore referred to having been abortive, the plaintiff took out a Master's summons on 8 day of July 1932, for an order that "the necessity of fixing a reserved price at the sale to be held on 22nd day of July 1932", (that was the date fixed by the Registrar for the third sale), "be dispensed with and for an order that the Registrar do pay to Messrs. Khaitan & Co." a certain sum pursuant to a certain order. That application stood over from time to time at the request of the present appellant and was not finally disposed of by Panckridge, J., till 21 July 1932. There is no judgment in the case, but the minutes are printed on p. 36 of the paper book and it appears that the Court was of opinion that, on the plaintiff undertaking to commence the bid at the highest figure arrived at, at the last sale, namely, Rs. 1,90,000, the necessity for fixing a reserved price at the sale to be held on 22nd July, 1932 should be dispensed with. There wore certain other directions about payment of a certain sum of money to Messrs. Khaitan & Co., but we are not concerned with the same.

(2.) It is against this order that the present appeal has been filed and, although we have not had the advantage of hearing Mr. S.N. Banerjee for the respondent, because we were of opinion that the case did not. call for an answer from Mr. Banerjee, Mr. Banerjee has indicated to us that one of his points is that there is no appeal under the law against the order of Panckridge, J., dated 21 July 1932. It is reasonably clear from the materials on the record, to which our attention has been called, that the learned Judge has done nothing which has not been done by a succession of Judges who have sat on the original side and who have been and are thoroughly familiar with the practice which obtains there. It has often happened that sales have become abortive and thereupon the Judge taking interlocutory matters on the Original Side has given directions that, inasmuch as the sales have become abortive, the necessity for adhering to the reserved price might be dispensed with. As a matter of fact, this is provided for by the rules on the Original Side: see pp. 329 to 332 of the Original Side Rules. Therefore, there is not any particle of substance in Mr. Bose's contention that the learned Judge has done something which is in violation of the terms of the final decree. Anyone turning to the forms of final decrees as contained in the Appendix to the Civil Procedure Code will see at once that there is no mention of "reserved price" in the forms in the Civil Procedure Code. It is only according to the rules which obtain on the original side that the necessity of a reserved price arises; and, as the sales take place on the footing of what obtains in the Chancery Division in England, the forms prevailing there have been adopted and copied. But the primary object of these rules is to see that the decree-holder is enabled to enjoy the fruits of his decree and that he should do so as early as possible.

(3.) Now, when sales become abortive by reason of the paucity of bidders or for reasons allied to the same, the rules contemplate that the Judge's attention should be drawn and that the Judge, on a full consideration of the matters involved in any application made to him, should give directions either that the reserved price should be adhered to or that the reserved price should be dispensed with see in particular Rule 21, Ch. 27, Original Side Rules. This is exactly what Panckridge, J., has done and I am unable to discover even the vestige of a complaint as regards what has been done in this matter. Panckridge, J,, has made the order not only on looking into the matters referred to in the plaintiff's application, but, after hearing the parties fully, i. e., after hearing the plaintiff and the defendant fully, and, after giving due weight to the circumstances which were responsible for the two sales being abortive. In this stage of the record on the merits the appellant has no reasonable case to put forward.