Bindeshwary Mistry v. Srimati Bandhiya Devi — 1978 DIGILAW 227 (PAT)

Judgment S. Ali Ahmad, J. 1. These two appeals are directed against the order passed in Misc. Appeal No. 22 of 1970 and Misc. Appeal No. 23 of 1970 by Sri Ganesh Prasad, Subordinate Judge, Biharsharif. By the impugned order the learned Subordinate Judge set aside the judgment and the order passed by the learned Munsif setting aside the auction sales held in Execution Case No. 6 of 1969 and Execution Case No.7 of 1969. Since common questions of law arise in the two appeals, they have been heard together and are being disposed of by one order. 2. In order to appreciate the arguments advanced by learned counsel for the parties, some facts• need be stated. These facts are that the appellant, along with the two brothers namely, Rajendra Mistry and Ramdeo Barhi filed two title suits against the respondents. These title suits were registered as Title Suit No. 195/13 of 1961/65 and Title Suit No. 196-14 of 1961-65. Both the two suits were dismissed with costs. The amount of costs in Title Suit No. 195/13 of 1961/65 was Rs.143/27 paise, while the costs awarded in Title Suit No. 196/14 of 1961/65 was Rs.46-43 paise. The respondents put the two decrees for costs into execution which were numbered as Execution Case No. 6 of 1969 and Execution Case No.7 of 1969. In these two execution cases, 1-17 acres of land was auction purchased for Rs.143-27 whereas 45 acres was auction purchased by the decree holder respondents for Rs.46-43 paise on 8th August 1969. Delivery of possession of the lands auction purchased by the respondents was effected on 27th December. 1969 and on that day, according to the appellant, he came to know of the execution cases and the subsequent auction sales. Thereafter on 7-1-1970, applications in the two execution cases were filed under Order XXI, rule 90 of the Code of Civil Procedure, praying to set aside the sales on the grounds of fraud and material irregularities. According to the appellant, the respondents got all the processes served Balabala in collusion with court's peon. Notice of attachment and sale proclamation were not served at the spot. It was also said that the appellant came to know of the sales and execution cases on 27th December, 1969 from a Mohammaden peon on 27-12-1969 when he came to effect delivery of possession. Notice of attachment and sale proclamation were not served at the spot. It was also said that the appellant came to know of the sales and execution cases on 27th December, 1969 from a Mohammaden peon on 27-12-1969 when he came to effect delivery of possession. Last, it was said that valuable lands of the appellant were sold for a nominal price in an improper way and after committing material irregularities. 3. The respondents contested the two cases. Their case, inter alia, was that the two applications filed by the appellant under Order XXI, rule 90 of the Code of Civil Procedure were not maintainable inasmuch as the two other judgment debtors were not parties to them. The allegations that processes, etc. were suppressed were denied and it was said that they were served on the spot. The allegation of fraud and material irregularities in conducting the rule was also denied. According to them the lands were sold for proper price. 4. The learned Munsif, on a consideration of the evidence adduced before him, came to the conclusion that the processes in the two execution cases were suppressed and collusive service reports were obtained. He was, therefore, of the view that the sales were brought about by material irregularities and fraud. It was held by the learned Munsif that appellant had suffered substantive injury on account of fraud and material irregularities. The two auction sales were, therefore set aside. 5. Appeals were thereafter filed by the respondents which were heard by the learned Subordinate Judge, the applications besides being barred by limitation were not maintainable as the other two judgment debtors were not made parties. Further the learned Subordinate Judge held that the processes were duly served and that the land has not been sold at a low price. The appeals were, therefore, allowed and the order setting aside the sales was set aside. These appeals, there fore, have been filed by the applicant judgment debtor. 6. Mr. S. Ashghar Hussain, learned counsel for the appellant first submitted that the court of appeal below erred in law in holding that the application as under Order XXI rule 90 of the Code of Civil Procedure were not maintainable. In that connection, learned counsel submitted that Order XXI, rule 90 of the Code of Civil Procedure did not prescribe that all the judgment debtors should be parties to the proceeding. In that connection, learned counsel submitted that Order XXI, rule 90 of the Code of Civil Procedure did not prescribe that all the judgment debtors should be parties to the proceeding. According to him, proviso to sub rule (2) of Rule 92 of Order XXI of the Code of Civil Procedure only provided that no order setting aside the sale shall be made unless notice of the application has been given to all persons affected thereby. The applications, as filed, therefore, according to the learned counsel, were maintainable. He further submitted that the other two judgment, debtors were not affected, if the sales were set aside and, as such, no notice was required to be served on them. Alternatively learned counsel also urged that in case the court of appeal below was of the opinion that the other two judgment debtors were also affected by the order setting aside the sales then opportunity should have been given to give notice to them. Mr. Mazahar Hussain, learned counsel for the respondents, on the other hand, submitted that Order XXI rule 90 of the Code of Civil Procedure should be read along with the proviso to sub rule (2) of Order XXI, rule 92 of the Code of Civil Procedure According to him therefore, the two other judgment debtors were interested in the sales and as such, they should have been made parties to the proceeding and in their absence, the sales could not be set aside. To support his argument learned counsel referred to the decision in the case of Kapileshwar Jha v. Anirudh Jha) In that case, in execution of a rent decree, the decree bolder purchased the holding and after obtaining delivery of possession made a settlement of it in favour of the plaintiff. Subsequently, the auction sale was sat aside on an application under Order XXI rule 90 of the Code of Civil Procedure filed by a mortgagee of a portion of the holding without making the plaintiff a party to the proceeding for setting aside the sale. The plaintiff, therefore, brought a suit for declaration that the order setting aside the sale was fraudulent and not binding on him. The plaintiff, therefore, brought a suit for declaration that the order setting aside the sale was fraudulent and not binding on him. On these facts, it was held that the plaintiff, who was the settlee from the auction purchaser was a person affected within the meaning of Order XXI, rule 92 (2) of the Code of Civil Procedure and therefore, was a necessary party to the proceeding for setting aside the sale. If I may say so with respect, I entirely agree with all that has been said in the aforesaid case. The plaintiff by virtue of settlement from the auction purchaser had acquired title in the holding and as such, was a person affected within the meaning of Order XXI, rule 92 (2) of the Code of Civil Procedure. But in the cases at hand, the two judgment debtors had no interest left after the sales. Therefore, if the sales were set aside, they were not affected by them. To me it appears that the expression "person affected there by" as used in the proviso to sub-rule (2) of rule 92 of Order XXI of the Code of Civil Procedure means person prejudicially or adversely affected there by. Since the order setting aside the sales could not be said to prejudicially or adversely affect the other two judgment debtors, I think the order setting aside the sales could be passed without making them parties to the proceeding or without giving notice to them. The applications, therefore, were maintainable. 7. Mr. Ashghar Hussain, learned counsel, next submitted that the finding regarding limitation is also erroneous in law. According to him, the appellant had examined himself as A.W. 5 and he had stated that no notice whatsoever was served on him and that he learnt of the execution case and of the delivery of possession for the first time on 27.12.1969 from a Mohammadan peon, who had come to effect the delivery of possession. In paragraph 8 of the Judgment, the learned Subordinate Judge has considered the question of limitation. From a perusal of this paragraph, it appears that the case of the appellant that he came to know of the execution case and of the auction sale on 27th December. 1969, (or the first time from the Mohammadan peon has been rejected only on the ground that the Mohammadan peon has not been examined. From a perusal of this paragraph, it appears that the case of the appellant that he came to know of the execution case and of the auction sale on 27th December. 1969, (or the first time from the Mohammadan peon has been rejected only on the ground that the Mohammadan peon has not been examined. The evidence of the appellant (A.W.) has not at all been referred to by the learned Subordinate Judge. To avoid remand, I have looked into the evidence myself and I think that the appellant had discharged his initial onus by stating that no notice whatsoever was served on him and that he came to know of the execution case and the sale on 27th December, 1969. After this, the onus shifted on the respondents to prove that the appellant had knowledge of the auction sale much before. No evidence on that point was adduced. Therefore, on the (acts of these appeals, I am of the view that the appellant has been able to establish that be came to know of the execution case and of the auction sale for the first time on 27th December, 1969. The period of limitation is admittedly 30 days from the date of auction sale and in case the notices were suppressed on account of fraud then within 30 days from the date of knowledge. The applications for setting aside the sales were filed on 7.1.1970 i.e. much within 30 days from the date of knowledge. Therefore, according to me, the applications were within time and not barred by limitation. 8. The findings that the lands were sold for proper value has been seriously assailed by Mr. S. Ashghar Hussain recorded this finding without meeting the reasonings given by the learned Munsif. He also contended that this finding is based on only surmises and conjecture. Mr. Mazhar Hussain, on the other hand, contended that as to whether the lands have been sole for proper value or not is a pure question of fact and is binding on this Court in second appeal. There can be no doubt that a finding of fact is binding on this Court in second appeal provided it is not erroneous in law. There can be no doubt that a finding of fact is binding on this Court in second appeal provided it is not erroneous in law. By a long series of decisions, it is now well established that the duty of the first appellate court is to consider the evidence as adduced by the parties and also to meet the reasonings given by the trial court, in case it disagrees with the findings recorded by the trial court. The finding of the learned Munsif about the gross under valuation of the lands in question was based on the evidence of A.W. 3, A.W. 4 and A.W. 5. According to the evidence of A.W. 3, the lands valued at Rs.350/- per katha whereas according to A.W. 4, they valued Rs.300/- per khtha A.W. 5 stated that the lands worth Rs.12,000/- were sold for Rs.190.27 paise only. The lower appellate court set aside the finding on this point without really considering the evidence or these witnesses. The reason for this, as appears from the judgment of the learned Subordinate Judge from the judgment of the learned Subordinate Judge was that the valuation of the land as given by those witnesses was challenged while they were being cross-examined. That in my view was not correct. It appears that the respondents had also examined witnesses and they had said that the lands in question were of a low quality and part of it was ditch. O.W. 6 is a witness, claimed to have signed the report regarding notice. He admitted that the lands were Dofasla and it yielded paddy and Khesari both. This evidence, which has been relied upon by the learned Munsif has been completely over looked by the court of appeal below, I am therefore, of the view that the finding that the lads have been sold for proper value is not correct. This finding is, therefore, set aside. The questions next arises as to whether the appeal should be remanded back to the court of appeal below to record a finding on this point. The auction sale was held in the year 1969 and the applications under Order XXI, rule 90 of the Code of Civil Procedure were filed in January, 1970. More than eight years have already elapsed. To send the appeal back on remand will prolong the litigation for another four or five years. The auction sale was held in the year 1969 and the applications under Order XXI, rule 90 of the Code of Civil Procedure were filed in January, 1970. More than eight years have already elapsed. To send the appeal back on remand will prolong the litigation for another four or five years. I, therefore, looked into the evidence my self and hold that the auction sales fetched grossly low price. May be that the evidence of O.Ws. 3, 4 and 5 regarding valuation was exaggerated but that does not mean that 1.62 acres of Dofasla land in the district of Patna will fetch only Rs.190.27 paise. Judicial notice can be taken of the fact that there has been a steady rise in price of land since 1950 or so. The auction sale was held in August, 1969, when price bid become quite high. Therefore, in my view the price of the land in question measuring 1.62 acres (about 2 bighas and 16 kathas) could not be less than Rs.8,00/-. The land, therefore, has been sold for grossly a low price. This gross under valuation on the facts of this case, leads me to presume that fraud was practiced on the appellant judgment debtor and the sales were conducted with material irregularities. But as I have said, this is only a presumption and can be rebutted. The question, therefore, is, has it been rebutted? I think no. It is true that the finding recorded by the lower appellate court is that notice under Order XXI, rule 22 of the Code of Civil Procedure was properly served but that alone was not sufficient. The sale proclamation had to be issued and there is no definite finding on this point. All that has been said by the lower appellate court peon who served the sale proclamations on the land. Exts. F and F-I are his service reports on the sale proclamation Exts C and C-I are signature of O.W. 3 on S.P." I have looked into the evidence of O.W. 8 and O.W. 3. They do not inspire confidence because O.W. 8 had no independent recollection and O.W. 3 is interested with the respondents. The result therefore is that there has been material irregularities and fraud in conducting the two sales as a result of which the appellant sustained substantial injury. 9. Mr. They do not inspire confidence because O.W. 8 had no independent recollection and O.W. 3 is interested with the respondents. The result therefore is that there has been material irregularities and fraud in conducting the two sales as a result of which the appellant sustained substantial injury. 9. Mr. Mazhar Hussain, learned counsel also urged that the applications have been, held to be not maintainable by the lower appellate court also on the ground that they were not filed through a next friend as the appellant was a minor on 7.1.1979. No doubt, the lower appellate court has held so. The rejoinder filed by the respondents in the two cases, nowhere mentioned this fact. The appellant, therefore did not adduce any evidence to prove that he had attained majority on 7.1.1970. The lower appellate court was obviously, therefore, wrong in holding that the appellant was a minor on the relevant day on the basis of some stray evidence in the case. This can be no ground to defeat the claim. 10. In the result, the appeals are allowed and the order passed by the lower appellate Court in the two cases are set aside and that of the learned Munsif is restored. In the circumstances of the case, there will be no order as to costs. Appeals allowed.