Baidyanath Sarkar vs Prabhabati Dasi and Others

Ross, J.—This is an application against an order of the District; Judge of Dumka reversing an order of the Subordinate Judge of Jamtara and getting aside a sale in execution under Order 21, Rule 90 of the Civil Procedure Code. No second appeal lies against such an order, but there is an application in revision. It appears that in 1917 the appellant brought a suit for money against the respondents which was decreed on compromise in 1918 on the terms that a charge was created over certain properties. There was to be payment of the decretal amount by instalments and an agreement was made that if any instalment was not paid the decree should he executed. In 1922, the appellant proceeded to execute the decree. On the 8th August, 1922, there was an application for stay of the proceedings on the ground that one of the judgment-debtors, Satya Prasanna Das, was a minor when the suit was brought and that he bad instituted a suit to exempt his 2 annas share of the property from the decree. The Subordinate Judge thereupon ordered that 14-annas only of the property, instead of 16-annas as proclaimed for sale, should be sold. On the 11th September, 1922, an application was made under Order 21, Rule 90, Civil Procedure Code, to set aside the sale. No evidence was offered, and on the 21st January, 1923, the Subordinate Judge refused the application.

On appeal the District Judge has set aside the sale. It was found by the Subordinate Judge that there had been no loss to the judgment-debtors in the sale of the property which had fetched a fair price. With regard to the sale of 14-annas instead of 16-annas, he held that this was an irregularity, but as there was no substantial injury resulting from it, he refused to interfere with the sale. The learned District Judge has agreed with the Subordinate Judge that the property was not sold at less than a fair price, but he has set aside the sale on the ground that the mortgage was split up inasmuch as 14-annas instead of 16-annas was sold and that the Court in splitting up the mortgage had acted illegally. I can see no reason why a mortgagee should not sell a portion only of the mortgaged property; and the learned Vakil for the respondents has conceded that the order of the District Judge cannot be supported on the ground on which it was passed. He contends, however, that the property that was sold was not the property that was proclaimed for sale and that the sale was, therefore, illegal. He relies on Thakur Barmha v. Jiban Ram Marwari (1913) 41 Cal. 590. That, however, was an entirely different case. What was sold in that execution was a 6-annas share of a Mahal subject to a mortgage. After the sale the auction-purchasers applied for a correction of the certificate of sale by adding the word "not" to the description of the property. It was held that what is sold at a judicial sale can be nothing but the property attached, and that the property attached had been the property subject to the mortgage and it could not be treated as the share in the estate which was not subject to the mortgage. There is no analogy whatsoever between that case and the present. In the present case, the property that has been sold is a portion of the property that was proclaimed for sale and I can see no reason why the sale should be invalid.

The result is that the application must be granted and the order of the District Judge set aside and the order of the Subordinate Judge restored. The petitioners will be entitled to their costs, hearing fee two gold mohurs.

As the appeal does not lie it must be dismissed without costs.

Das, J.

I agree.