PRAFULLA CHANDRA BEZBARUAH Vs. CALCUTTA CREDIT CORPORATION AND ANR.

JUDGEMENT

(1.) THIS appeal arises out of an execution matter. Respondent No. 1 Messrs. Calcutta Credit Corporation obtained a decree In the Calcutta High Court against the Appellant P.C. Bezbarua for the recovery of a car and a sum of Rs. 10,315/10/ - with cost and Interest. This decree was sent for execution to the District Judge at Gauhati who sent it to the District Judge at Jorhat for necessary action. The District Judge at Jorhat in his turn sent the decree to the Subordinate Judge at Jorhat for execution but before any action could be taken the District Judge at Gauhati recalled the decree and sent it to the Subordinate Judge at Gauhati for execution.

(2.) ON 29 -11 -56 the decree -holder got possession of the car and some shares of the judgment -debtor in the Govindapur Tea Company Limited were attached for realisation of the cash amount. On 11 -12 -58 a sale notice was issued. It appears from the record that this sale notice could not be served on the Judgment -debtor and a Sale Proclamation was issued 18.8.59 On 8.1.60 two share -holders of the Govindapur Tea Company, other than the judgment -debtor, filed petitions alleging that in the Sale Proclamation their shares were wrongly advertised for sale. The decree -holder admitted these mistakes and -hence: a fresh safe proclamation was issued. But no sale notice under Order 21 Rule 66(2) was issued In respect of this sale proclamation. Thereafter the Munsif at Gauhati was entrusted with the conducting of the sale. The auction commenced on 29 -2 -60 and was closed on 9.3.60. The decree -holder and Respondent No. 2 the Bahadur Tea Company Limited were the only bidders. The Bahadur Tea Company Limited gave the highest bid and purchased the shares at Rs. 11,600/ -. On 8 -4 -60 the judgment debtor filed a petition under Section 47 of the Code of Civil Procedure for setting aside the sale alleging inter alia that the sale proclamation was defective and that no sale notice was served en the judgment -debtor and as a result the shares were sold at a very low price. The petition did not bear any court -fee On. 24 -5 -60 another petition was filed repeating the above allegations and stating that due to certain illegalities the entire execution proceedings were null and void. These petitions were considered by the learned Subordinate Judge who dismissed the same by his order dated 22.5.61. The present appeal is against that order.

(3.) MR . Ray, the learned Counsel for the Appellant, contends that an omission to give notice of sale under Order 21 Rule 66, Code of Civil Procedure is more than a mere irregularity and renders the sale void. He also contends that the omission of the time and place of sale In the sale proclamation means that the sale which took place under such a proclamation was no sale at all under the Code of Civil Procedure. He submits that it is a very jutmaijj affects the interest of the judgment debtor, it Appellant; S. K. Ghose, Is to hose interest tin property should be sold at a negative price. The provision In Order 21 Rule 66(2) which the Court to issue the notice of sale and to men hard case in which very valuable property was sold at a frivolous price.