Newal Choudhury and Others vs Ram Sunder Thakur and Others

Dhavle, J.—This is an application in revision made by the sons of one Ghanshyam Choudhary, who was defendant 4 in a mortgage suit and became a judgment-debtor under the decree in that suit. He had been impleaded in the suit as a transferee of a portion of the mortgaged property. In execution of the decree the property was put up to sale. The date fixed for the sale was 3rd August 1925, but the sale was actually held on 7th August 1925. More than thirty days after the sale came an application by the present applicants to have the sale set aside under Order 21, Rule 90. This application was dismissed by the executing Court and an appeal which was heard by the Subordinate Judge of Purnea proved unsuccessful.

Mr. Sushil Madhav Mullick on behalf of the applicants in revision has not attempted to challenge the findings on which the application under Order 21, Rule 90 was dismissed by the lower Court. He has raised one point, and one point only, in the present application, and that point is that as the sale was held on 7th August 1925, a date different from the date given in the sale proclamation under Order 21, Rule 66, it is affected by an irregularity which entitles the applicants to have the sale set aside. Mr. Mullick has endeavoured to support his argument by citing Jasoda v. Mathura Das [1887] 9 All. 511, where Mahmood, J., seems to have expressed the view on the law as it then stood (Section 311 of the Code of 1882) that material irregularities were sufficient to entitle the party concerned to have the sale set aside even without proof of substantial injury resulting therefrom and that it was only in the case of mere irregularities (as distinguished from material irregularities) that it was necessary for the applicant under the section to establish that he had sustained substantial injury. The difficulty in accepting this contention is that one of the reasons hinted at by Mahmood, J., has now disappeared. Section 311 of the Code of 1882 was in these terms:

The decree-holder, or any person whose immovable property has been sold under this chapter, may apply to the Court to set aside the sale on the ground of a material irregularity in publishing or conducting it; but no sale shall be set aside on the ground of irregularity unless the applicant proves to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.

Mahmood, J., referred to the fact that para. 2 of the section did not appear in the Code in the form of a proviso governing the earlier paragraph but as a separate clause beginning with a disjunctive word. A bare reference to Order 21, Rule 90 shows that we now have a regular proviso (requiring proof of substantial injury) to the earlier part of the section. The case cited is moreover distinguishable as a case where the sale would have had to be set aside on the ground that it had taken place before the expiration of the thirty days required by Section 290, Civil P.C. of that time, a circumstance that had been held in the case of Bakshi Nand Kishore v. Malak Chand [1885] 7 All. 289 to be something more than a material irregularity.

The learned advocate for the opposite party has in this connexion drawn my attention to Sam Chand v. Pitam Mal [1888] 10 All. 506, a case in which Mahmood, J., seems to have expressed doubts about the correctness of the view he had indicated in Jasoda v. Mathura Das [1887] 9 All. 511.

There is also another difficulty in the way of the applicants, and that difficulty is caused by the fact that the ground on which the sale is now challenged does not seem to have been taken in either of the lower Courts. It is a ground involving questions of fact. Mr. Sushil Madhav Mullick has referred to the order sheet in which we find the 3rd August fixed for the sale and the 7th August mentioned as the date on which the sale was held. But it is impossible to maintain that the power to adjourn a sale, which is given by Order 21, Rule 69, cannot be exercised without a specific order recorded in the order sheet itself. It is not inconceivable that the order may have been recorded elsewhere if it was an order governing this particular case; or there may have been a general order in this as in other districts that sales fixed for any particular day shall be held one after another and continue till the last item on the list is reached, provided of course that this last item is reached within the period of a week. It is only after a week that the old proclamation ceases to be effective and the party concerned has to take out a fresh proclamation. These are matters of fact which cannot be dealt with in revision.

Mr. Siveshwar Deyal has also resisted the application in revision on the ground that the applicants are barred by time. On that point there is a concurrent finding of fact by both the lower Courts, and Mr. Mullick has only half-heartedly said, he could not of course maintain it seriously that the special rule of limitation for an application under Order 21, Rule 90, namely thirty days, can be got over in the present case because the auction-purchaser was the decree-holder himself and therefore the application Under Order 21, Rule 90, should be dealt with as an application under 8. 47 and the period of limitation enlarged. Had such a proposition been seriously advanced, I should have had no hesitation in rejecting it as utterly untenable.

The application therefore fails and is dismissed with costs.