Pankaj Kumar Pakhira vs Nani Bala Pakhira

P.N. Mookerjee and A.K. Dutt, JJ.—This Rule was obtained by the Petitioner against an order of the learned Subordinate Judge, refusing his application for setting aside an execution sale. The sale was held on May 4, 1964. The application for setting aside the sale was filed on June 23, 1964.

At the impugned sale, the decree holder purchased the disputed property and she is the contesting opposite party in this Rule.

On the finding of the learned Subordinate Judge himself, the property was worth, at the lowest, Rs. 32,000. Its value in the sale proclamation was, however, given by the decree-holder as Rs. 4,500 and it was actually sold and purchased by her (the decree-holder herself) for Rs. 2,468-39 P. The learned Subordinate Judge was further of the opinion that the above low valuation in the sale proclamation was, on the evidence, deliberately given on behalf of the decree-holder and he held, in the light of the decision of the Judicial Committee in Marudanyagam Pillai v. Manickavasakam Chettiar (1945) L.R. 72 I.A. 104, that it was a case of deliberate and fraudulent under-valuation in the said proclamation of which advantage was taken by the decree-holder in purchasing the disputed property at the still lower valuation of Rs. 2,468-39 P. As, however, in the view of the learned Subordinate Judge, the application for setting aside the sale had to be taken as one under Order 21, Rule 90 of the Code of Civil Procedure, and as admittedly it was filed beyond thirty days from the date of sale, and as further the judgment-debtor (Petitioner before us) was, on the materials on record, clearly aware of the sale in time to apply for its setting aside within thirty days thereof, he recorded his inability to set aside the sale because of the bar of limitation.

In our view, the matter before us can be approached from a different angle, which would entitle the judgment debtor to get relief against the fraud committed on behalf of the decree-holder auction-purchaser and prevent her (the decree-holder auction-purchaser) from taking advantage of the fraud committed on her behalf.

As we have already said, the decree-holder herself purchased the disputed property. For that, she had to obtain leave from the Court to bid at the sale. That appears to have been obtained on an application filed by her, presumably under Order 21, Rule 72 of the Code. It is clear, however, to us from the finding of fraud, as indicated hereinbefore, that the said application was also part of the fraudulent scheme on the part of the decree-holder''s agents to grab the judgment-debtor''s valuable property at a low valuation, and that attempt obviously succeeded.

If the said application for leave to bid was part of a fraudulent scheme as aforesaid, and if leave to bid was obtained under such circumstances, it must be held to have been obtained by fraud practised on Court and, accordingly, it would have no existence in the eye of law or, in other words, the instant purchase by the decree-holder must be treated as a purchase made at a Court sale without the requisite leave to bid. That would probably make the sale in question challengeable also u/s 47 of the CPC and the instant application of the judgment-debtor Petitioner may accordingly be treated as an application under the said statutory provision too.

The above change, however, namely, from Order 21, Rule 90 of the Code alone to the dual provisions of the said Rule and Section 47 too would not really speaking be of any consequence on the question of limitation, as under the law, particularly under the present law, all applications for setting aside sales like the present, be it under the one or the other of the said provisions, would be governed by the thirty days limitation (vide Article 166 of the 1908 Act and Article 127 of the 1963 Act). The matter, however, is clinched on that point in favour of the judgment-debtor by reason of the finding, in the first place, already made by us of fraud practised upon the Court by the decree-holder auction-purchaser in the matter of the sale in question, which enabled her to grab the disputed property at an utterly low valuation, shockingly low and shocking to the conscience in the instant case, in particular, the deliberate and fraudulent gross under-valuation in the relevant sale proclamation. That fraud on Court admits of no bar of limitation in the matter of granting adequate relief against it and the Court''s power to undo the mischief caused by such fraud or resulting from the same, no application being obviously needed for the purpose under the law, and the only limitation in such matters lies in the Court''s view of the justness or otherwise of the exercise of its inherent power to do justice between the parties concerned or the exercise of its discretion in that behalf, having regard to all the circumstances of the case, including the conduct of the judgment-debtor and any other party concerned, prejudicial delay and intervening interests, if any, and, in fine, true application of the well-known principles of justice and equity, that is, within their recognised limits.

In the above view we are unable to agree with Bachawat, J., as he then was, in the view expressed by him on the point in Baswali Sheikh v. Matangi Charan Ghose (1956) 61 C.W.N. 468 and on, inter alia, the scope, effect and interpretation of the decision of the Judicial Committee in Marudanyagam Pillai v. Manickavasakam Chettiar Supra, so far as it related to the said question, and we are inclined to agree with Bijayesh Mukherji, J. on the point vide Prabodh Chandra Mukherjee v. Pasupati Mukherjee (1966) 77 C.W.N. 649 subject, of course, to the limitation set out by us above; or, in other words, we would hold that, although the bar of limitation will not apply in such cases, the matter of relief would rest in the discretion of the Court in the exercise of its inherent power having regard to all the relevant aspects in that context.

In the premises, we would make this Rule absolute, set aside the impugned order of the learned Subordinate Judge; but this must be done on terms in the circumstances of this case, particularly when we are interfering in revision, and, in the facts and circumstances of this case, we think that the judgment debtor must pay to the decree-holder auction-purchaser opposite party or deposit to her credit in the executing Court below a sum of Rs. 2,000 out of her claim for maintenance against him up till this date and, only on such payment or deposit, our above order setting aside the sale in question will have effect, the said payment or deposit being directed to be made within January 7 next. In default, this Rule will stand discharged. There will be no order for costs in this Rule.

If the amount of Rs. 2,000 is deposited as aforesaid, the impugned sale will be set aside and the decree-holder will be entitled to withdraw the amount of Rs. 2,000, to be deposited by the judgment-debtor, as aforesaid, without furnishing any security therefore towards or in part satisfaction of her claim for maintenance against the judgment-debtor up till this date and/or future maintenance, it being clearly understood that the decree-holder will also be entitled to withdraw the amount of Rs. 2,468-39 P. out of the amount deposited by the judgment-debtor in connection with the application under Order 21, Rule 89 of the CPC in satisfaction of her claim for maintenance for which the sale in question was held.

Let the records go down as quickly as possible.