HARINDRA NATH MUKERJI Vs. BBHOLA NATH SAHU

JUDGEMENT

(1.) This appeal is directed against an order of the Additional Subordinate Judge of Benares rejecting an application filed by Harindra Nath Mukerji appellant for setting aside an auction sale. The application was in terms an application under Order 21, Rule 90, Civil P.C. and was based on the allegation that there was material irregularity in conducting the sale and that the applicant sustained substantial injury by reason of that irregularity. It was further alleged in the application that: The acceptance of the bid of the decree-holder offered in Court is illegal and irregular and is not a sale under the Code.

(2.) Stripped of all unnecessary details the facts that culminated in the application for setting aside the sale are as follows : Harindra Nath Mukerji executed a simple mortgage deed in favour of Bhola Nath. The property mortgaged was house property. Thereafter Harindra Nath Mukerji sold a portion of the mortgaged property to one Mahabir Awasthi. Bhola Nath brought a suit for sale on the basis of his mortgage impleading both Harindra Nath Mukerji and Mahabir Awasthi. Mahabir Awasthi contended inter alia that the property purchased by him should be sold only if the mortgaged property that remained with Harindra Nath Mukerji was found insufficient to satisfy the mortgage debt. The case came up to the High Court and Bhola Nath's claim was decreed. The preliminary decree for sale provided that: When the time comes for sale, the execution Court will have full discretion in the matter. If it is satisfied that it is equitable and fair that the defendant's (Mahabir Awasthi s) property should be sold after the other property has been put up for sale, it will have discretion in the matter.

(3.) A final decree for sale incorporating the above conditions was passed in favour of Bhola Nath on 9 July 1932. In the course of execution proceedings the decree-holder proposed that the mortgaged property should be sold in two lots, one lot being of the properties that remained with Harindra Nath Mukerji and the other lot being of the properties purchased by Mahabir Awasthi. The judgment- debtor, on the other hand, suggested that a higher price would be obtained if the property was sold in five lots and accordingly prayed that five lots of the mortgaged property be prepared and each lot be sold separately. The Court directed that the sale should take place both according to the proposals of the decree-holder and. of the judgment-debtor. In other words the Court directed that the property should be sold in two lots as well as in five lots. It also directed that the Amin would not have the power to accept the highest bids and the bids shall be submitted to the Court which will have the power to accept or to refuse to accept the highest bids offered by the purchasers with respect to the various lots. Maps of the lots were annexed to the sale proclamation and it was noted in the proclamation that without the order of the Court the sale would not be deemed concluded. The Amin conducted the sale in both the manners referred to above. The total of the highest bids offered on the sale of the mortgaged property in two lots was Rs. 6,000 whereas the total of the highest bids offered on the sale of that property in five lots was Rs. 7,620. The Amin submitted a report to the Court to this effect on 19 January 1934. On the receipt of the Amin's report the Court fixed 26 January 1934, for the decision of the question as to which bid should be accepted and notice of the date fixed was given to the vakils of the decree-holder and the judgment-debtor as also to the bidders who had offered the highest bids.