Babu Chattarpatt Singh vs Babu Surendra Nath Singh

Chapman, J.—This is an appeal by the judgment-debtor. He applied to have an execution sale set aside upon the ground of material irregularity in publishing and conducting the sale. His application was refused by the Subordinate Judge and hence his appeal to this Court.

The property which has been gold is a right of fishing in a river which is partly silted up. This river flows through the thanas of Auraria and Kasba Amore in the District of Purnea. The evidence is that in Auraria thana the river is for the most part silted up, but there still remains in thana Kasba Amore a sufficient length of the river to cover a distance approximately of 20 miles as the crow flies and considerably more than that following the line of the river, which is a very winding one. The actual collections received from this large estate amounted to Rs. 900 out of a rental of Rs. 1,200 odd. In addition to that there was a rental received from certain se-patanidars of Rs. 739. The rental payable for the estate which was a patni estate was Rs. 601. The actual realised income annually, therefore, from the property was over Rs. 1,000. It was sold for Rs. 2,500, a price which was obviously grossly inadequate, both having regard to the vast extent and promise of the property and having regard to the actual realisations from it.

In the sale proclamation there is no indication that the estate is of this magnitude. The estate is described merely by a tauzi number and a name, in fact the estate ran through as many as 138 villages. There is nothing to indicate this in the notification and the valuation stated in the sale proclamation is Rs. 2,500. It is inconceivable that the decree-holder could have thought such a valuation reasonable in the case of an estate of such magnitude, even though he may not have been aware what the actual income realised from the estate was. The Privy Council have held in the case of Saadatmand Khan v. Phul Kuar 20 A. 412 : 2 C.W.N. 550 : 25 I.A. 146 : 7 Sar. P.C.J. 380 : 9 Ind. Dec. (n.s ) 624 (P.C.) that where an under-valuation of the property made in the sale proclamation is obviously a gross misrepresentation the sale will be set aside.

The learned Subordinate Judge in dismissing the application does not appear to have applied his mind to this question. It appeared to him to be necessary only to consider whether the property had been actually proclaimed for sale or not. To so decide the matter was to act in contravention of the principle laid down by the Privy Council in the case to which I have above referred. I am of opinion that the sale proclamation was materially irregular, both in the description of the property and in the valuation put on it, and for that reason alone we should be justified in setting the sale aside. I am confirmed in this view when I come to consider the manner in which the sale was proclaimed. In this long stretch of country 20 miles or more in length, there is one village containing some 30 or 40 houses called Basheli in which there is a pool of 100 yards long and 150 yards broad. The evidence is that either upon the edge of the water here or upon the land by the side of the pool a notification proclaiming the sale was posted. I am not prepared to differ from the learned Subordinate Judge as to the question of fact whether this notification was actually posted there or not: but it is certainly on the evidence quite impossible to say whether the notification was actually posted on the estate, that is to say, in the water or not. It also seems impossible to say upon the evidence that there was any beating of drum in any village other than the village of Basbeli. It would be difficult to hold that this was a proper compliance with the law in an estate of this magnitude. The rule which is applied is that laid down upon the subject of attachment in Rule 54 of Order XXI of the First Schedule of the Code of Civil Procedure, which requires that the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed at some conspicuous part of the property." When the property consists of a right of fishing over a length of stream which may quite reasonably extend to some 30 or 40 miles it is not of course possible to say that any particular spot on that stream is a conspicuous part of the property. In such circumstances the principle of the rule must be applied and a copy of the order must be conspicuously displayed at various portions of the estate. I am of opinion that the principle of this rule has not been applied in the present case when a copy of the order was affixed in only one out of 138 villages. In addition, we think that it would have been certainly desirable in such a case to have adopted some other method of advertising the sale either in the local newspapers or in the Gazette. The result of the inadequate description of the property in the sale proclamation, the gross under-valuation and this perfunctory method of proclaiming the property was that nobody appeared at the sale to make any bid. The decree holder was the sole bidder and purchased the property himself at Rs. 100 over the valuation which he had stated in the sale-proclamation. All that is required of us to find, in justifying the setting aside of the sale, is that on the facts we are of opinion that substantial injury has resulted; and on the facts even in this case I am entirely satisfied that there has been substantial injury. I am not deterred in setting aside the sale by the fact that on the day of sale the judgment-debtor tried to stay the sale by raising certain objections of want of jurisdiction, that the decree had been otherwise satisfied, without expressly raising any objection to the valuation of the property. I am also not deterred from decreeing this appeal by the fact that the other decree-holders were at the time applying for a rateable distribution and that they might have joined in the bidding. Finding as I do that the property was not sufficiently described, that it was grossly undervalued and that it was not properly proclaimed, I would allow the appeal and set aside the sale. The judgment-debtor is entitled to his costs.

Jwala Prasad, J.

I agree.