SHILA PAL (MINOR) Vs. COMILLA BANKING CORPORATION LTD

JUDGEMENT

(1.) This appeal is on behalf of some of the judgment-debtors, and it is directed against an order of the Sub-Judge 3 Court, Comilla, dated 21 November 1941, dismissing an application made by the appellants, for setting aside an execution sale under Order 21, Rule 90, Civil P.C. The material facts lie within a short compass and may be stated as follows: The respondent Bank advanced a sum of Rs. 57,000 to Babu Saroda Sundar Pal the father of the appellants on a pronote dated 7 August 1933. On the borrower failing to pay the money, a suit was instituted by the Bank on the basis of the pronote, in August 1936. Pending the hearing of this suit, Saroda died and his six sons were brought on the record, as his heirs and successors-in-law. A decree was passed on 29 September 1939, against these six sons, for a sum of Rs. 69,904 which was to be recovered from the assets of their late father in their hands. The decree was put into execution on 29 September 1939, and 38 items of property alleged to belong to Saroda Sundar were attached by the decree-holder. The widow of Saroda preferred a claim which was allowed and a number of the attached properties were released from attachment. Eventually 15 items of property were put up to sale in separate lots on 29th June 1940, and with the exception of lot No. 35, all the rest were purchased by the decree- holder for an aggregate price of Rs. 5975. On 29 July 1940, the present proceeding was started by two of the six sons of Saroda, who were judgment-debtors 3 and 6 and they prayed for setting aside the sale of 14 lots of properties on grounds of material irregularity and consequent inadequacy of price, under Order 21, Rule 90, Civil P.C. The Sub-Judge dismissed the application and the two judgment-debtors have come up on appeal to this Court.

(2.) The two questions that require consideration in this appeal are: (1) whether there was any material irregularity in publishing and conducting the sale? and (2) whether by reason of these irregularities if any the judgment-debtors sustained substantial injury? Mr. Sanyal appearing on behalf of the appellants has attempted to show that the material irregularities in connexion with the sale are of a threefold character. In the first place, there has been no proper publication of sale proclamation so far as the village properties are concerned. In the second place, the prices of some of the properties have been grossly understated in the sale proclamation; and thirdly no hour of sale was fixed by the Court on the adjourned date as is necessary under Order 21, Rule 69, Civil P.C. The entire evidence bearing on these points has been placed before us by the learned advocates on both sides. It is conceded by Mr. Sanyal" that there is no irregularity in the publication of the sale proclamation as regards lot No. 5, which is a plot of land measuring 1 kani and situated in the town of Comilla itself, nor with regard to lots 36 and 37, which are shares in certain joint stock companies held by Saroda Sundar Pal. Regarding the other 11 items of property which are situated in certain villages at a considerable distance from the Comilla town it seems to us that the evidence of publication of sale proclamation is unsatisfactory. The serving peon has no personal knowledge of the details of service. It appears that the actual report of service of sale proclamation which was verified by the peon, was through mistake or otherwise, not made an exhibit in this case. What has been marked as Ex. D, consists of certain statements made by the peon on the back of the several sheets of the sale proclamation, and these statements are neither complete nor verified. Mr. Sanyal has drawn our attention to various discrepancies between these statements and those which occur in the verified return of service. Unfortunately however these things were not brought to the notice of the Court below and the peon was not asked to state as to why he had prepared two reports at all, and what was his explanation regarding the discrepancies between the two. It is conceded on both sides that the witnesses were all examined and cross-examined on the basis of the verified report, and we must assume therefore that that is the proper return of service and that the exhibit-mark was put on a wrong paper inadvertently. The serving peon served the processes on the identification of one Mohim Ali who is an employee of the bank, and who was sent by the latter to act as identifier. He himself had no knowledge of the locality and says that he identified the different properties by making enquiries from villagers. The sale proclamation described the properties primarily with reference to Khatians of the C.S. records and did not state their boundaries. These were for the most part tenanted lands, and the settlement Khatians could show the names of the tenants who were in actual occupation of the same. The identifier says that he did not carry any settlement map or paper with him, and it is extremely doubtful, whether by making enquiries from villagers it was possible for him to identify the various properties even though their names or mudafats were mentioned in the sale proclamation. None of the Mokabila witnesses have been examined by the decree-holder. One Taijuddi whose name appears as a witness in the verified report of the peon in connexion with service of sale proclamation on 25 April 1940 has been examined by the judgment-debtor, and he states On oath that he never witnessed the service of sale proclamation in his village. Many of the witnesses, whose names appear in the peon's report, are not inhabitants of the particular village where the sale proclamation purports to have been served. In these circumstances we are of opinion that there has not been proper publication of sale proclamation so far as the village properties are concerned.

(3.) It cannot be disputed that the price of some of the properties was grossly understated in the sale proclamation. Thus lot No. 5 was valued at Rs. 200 in the sale proclamation though the decree-holder purchased it for Rs. 3000. We agree however with the Subordinate Judge that it is not open to the appellants to make this a ground for attacking the sale under Order 21, Rule 90, Civil P.C. It appears from the records, that both the appellants were served with notices under Order 21, Rule 66, Civil P.C., prior to the drawing up of the sale proclamation. Appellant 1 himself took the notice on signing the acknowledgment, and though appellant 2 now says that he was at Batanagore on that date, the peon's report shows that he was present at the house at the time, when the peon went there, and as he refused to sign the acknowledgment, the notice was hung up on the outer door of the premises where he lived. As the appellants in spite of having received notice under Order 21, Rule 66, Civil P.C., did not attend at the drawing up of the sale proclamation nor preferred any objection to the same, the sale cannot be set aside on the ground of any defect in the sale proclamation.