Murlidhar Khetan vs Nawab Saiyid Muhammad

Adami, J.—The grounds on which the appellant seeks to set aside the sale of the two properties mauza Tajpur Bishunpur and mauza Itwa are that an inadequate price was fetched at the sale owing to certain material irregularities. It is urged that the value of these properties was no less than Rs. 50,000 and they fetched at the sale only Rs. 32,000. The irregularities complained of are first, that the decree-holder had not the express permission of the Court to bid at the sale; and secondly, that the sale was adjourned without issue of fresh sale proclamation. Another ground put for ward is that the decree-holder failed to deposit the 25 per cent of the purchase money on the day of the sale.

With regard to the permission granted to the decree-holder to bid at the sale, admittedly the decree-holder filed a petition before the executing Court asking for permission to bid. No order was passed on his petition, but the decree-holder was allowed to bid throughout the course of the sale, The bid-sheet shows that on the several days on which the sale was held, a note was made that the decree-holder''s pleader had bid a certain amount, and on this note there was the order by the Subordinate Judge to try again to get a better price There is no doubt that the Subordinate Judge gave tacit permission for the bidding by the decree-holder, and it can be taken, I think, that the Court gave permission to the decree-holder to bid himself. It is true that there is no express permission in writing, but this was a mistake made by the Court and not by the decree-holder and there is no good reason why the decree-holder should suffer by the Court''s mistake, unless it can be shown that the properties were not sold for a proper price and that question I will deal with later.

The next ground is that there was no sale proclamation with regard to the later stages of the sale. It is admitted that the sale was fixed for the 14th November 1925, and on that date the bidding took place, but the judgment-debtor-appellant filed a petition asking that the sale might be adjourned to the 16th January and in that petition the appellant undertook to make no objection on the ground of any irregularities if the adjournment were allowed. The adjournment was allowed and bidding took place on the 16th January. The decree-holder''s bid was the biggest, amounting to Rs. 25,000. The learned Subordinate Judge was not satisfied with the bid and gave directions to the nazir "to try again".

The four following days were holidays and on the 20th January the order on the bid-sheet is:

decree-holder''s pleader bid Rs. 25,000 and there is no further increase.

The learned Subordinate Judge then ordered that the sale should be kept on hammer till the 22nd. On the succeeding days up to the 27th, attempts were evidently made each day to obtain a higher bid, but the attempts were unsuccessful, and on the 28th the bid of the decree-holder of Rs. 25,000 for mauza Tajpur Bishunpur was accepted. It is argued that on each of these days there was an adjournment of the sale, but the bid sheet clearly shows that there was no such adjournment at all. The property was kept on hammer throughout from the 16th January to the 28th January. On none of those dates did the bidding start afresh from the beginning; only an attempt was made to obtain some bid higher than the Rs. 25,000 bid by the decree-holder, It was a continuous sale and the provisions of Sub-section (2) Rule 69, Order 21 do not apply. This ground is, I think, untenable.

With regard to the failure to deposit the 25 per cent, of the purchase money on the date of sale, the learned Subordinate Judge has given very good reasons why the money was not deposited on that day. All the proper steps ware taken by the decree-holder and the reasons shown are good ones.

Then, finally, as to the price fetched. The bid-sheet and the order sheet show quite clearly that the Subordinate Judge was doing his very best to help the judgment-debtor to get a better price but no bidders came forward to outbid the decree-holder and of necessity the two mauzas had to be sold for Rs. 32,000 which was offered. There is nothing to show that this price was an inadequate price under the circumstances. It can never be expected that at an auction sale it is possible that the full value of the property can be obtained. The learned Subordinate Judge had good local knowledge, and it is clear that in his opinion the best price available has been obtained for the properties.

I see no reason to think that an inadequate price was obtained or that such inadequate price was due to any material irregularity.

I would, therefore, dismiss the appeal with costs in both Courts

Das, J.

I agree.