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1902 DIGILAW 196 (CAL)

Moti Laul Roy v. Bhawani Kumari Debi

1902-07-02

body1902
JUDGMENT 1. This appeal arises out of an application under sec. 311, C.P.C., for setting aside a sale. The Court below has set aside the sale on the ground that there were certain irregularities in publishing and conducting the sale which led to the substantial injury; and the irregularities found by the Court below are, first, that the sale proclamation had not been duly published in the mofussil; second, that the sale proclamation did not set out the necessary particulars, required to be specified by sec. 287 of the Code of Civil Procedure; and, third, that inducements had been held out to intending bidders preventing them from bidding. There is a fourth circumstance noticed in the judgment, namely, that one of the minor Defendants died after the decree and his legal representative was not brought on the record before the decree was sought to be executed. On appeal it is contended on behalf of the auction-purchaser, Appellant, that the Court below was wrong in holding upon the evidence that the sale proclamation had not been duly published in the mofussil; that the Court below was wrong in holding that there was any material omission to specify in the sale proclamation the particulars required to be mentioned by sec. 287 of the Code of Civil Procedure; that the Court below was wrong in holding that any inducement had as a matter of fact been offered to intending bidders to prevent them from bidding and that even if such inducement had been offered they amounted to any material irregularity in the conduct of the sale or could have any effect in vitiating the sale; that the Court below was wrong in holding that the absence of notice to the legal representative of the deceased Defendant affected the sale in any way; and lastly that the Court below was wrong in holding that the amount for which the property was sold was less than its fair value and that the injury, if any, sustained by the judgment-debtor, was the result of any irregularity in the publication or conduct of the sale. 2. We are of opinion that this appeal must fail, as one of the grounds referred to in the judgment of the Court below, namely, that the sale proclamation did not specify the particulars required to be mentioned by sec. 2. We are of opinion that this appeal must fail, as one of the grounds referred to in the judgment of the Court below, namely, that the sale proclamation did not specify the particulars required to be mentioned by sec. 287 of the Code, has been clearly made out and it is further clearly made out that the properties sold for a very inadequate price, and that the substantial injury sustained by the judgment-debtor must, from the nature of the case, have been the result of the irregularity in the publication of the sale, consisting in the non-specification of the particulars just referred to. The sale proclamation, whilst mentioning in one place that the sale is to be held subject to the incumbrances specified in the schedule, altogether omits to specify any incumbrance, and this circumstance must have had a prejudicial effect as against the interest of the judgment-debtor. But the matter does not rest there simply. The value of the property is stated in the sale proclamation to be about rupees five hundred only. And this circumstance coupled with the non-specification of the incumbrances the existence of which is indicated in the sale proclamation must have had an effect upon intending purchasers in controlling their bids. The value of the property according to the finding of the Court below, the correctness of which has not been challenged before us, was about one lakh and ninety thousand rupees and a property of such value was by reason of the incumbrances upon it said to be worth only rupees five hundred in the sale proclamation. Now the amount of the incumbrance according to the rough calculation of the Court below was about ninety-eight thousand rupees. A faint attempt was made to question the correctness of this calculation, but in the end it appeared that it was upon a mistaken view that the argument on behalf of the Appellant on this point proceeded. Accepting then the figures given in the judgment of the Court below the property in question subject to the incumbrances was worth at least ninety thousand rupees, and it was sold only for forty thousand and five hundred. The absence of specification of the incumbrances to which the property in question was subject, and which are required by cl. (c) of sec. The absence of specification of the incumbrances to which the property in question was subject, and which are required by cl. (c) of sec. 287 of the Code to be specified, coupled with the statement in the sale proclamation that the property was worth about rupees five hundred, amounted to a material misrepresentation which must be treated as a material irregularity in publishing the sale within the meaning of sec. 311 of the Code. The view we take is supported by the case of Sadatnand Khan v. Phul Kuer 2 C.W.N. 550 : s.c. 25 I.A. 146 (1898) and that there has been a substantial injury sustained by the judgment-debtor is clear from the fact that the property which, subject to incumbrance, was worth at least ninety thousand rupees has been sold only for forty thousand five hundred rupees, that is, less than half its proper value. 3. The only other point that remains to be established to make this a ground for setting aside the sale is whether this substantial injury has resulted from the material irregularity noticed above. Upou this point, as has been held by this Court in the cases of Gur Buksh Lall v. Jawahir Singh ILR 20 Cal. 599 (1893) and Surnomoyee Debi v. Dakhina Ranjan Sanyal ILR 24 Cal. 291 (1896), the relation of cause and effect between proved irregularity and inadequacy of price may either be established by direct evidence or be inferred from the circumstances of the case; and having regard to the circumstances of this case we think that it may reasonably be inferred that the substantial injury proved in this case was the result of the material irregularity in the publication of the sale noticed above. As the sale has therefore been rightly set aside on this one ground it becomes unnecessary to consider the other grounds relied upon in the judgment of the lower Court. 4. The result then is that the order of the Court below appealed against must be affirmed and this appeal dismissed with costs. We assess the hearing fee at five gold mohurs.