Raja Bahadur Sir Rajendra Narain Bhunj Deo vs Debi Choudhary and Others

Madan, J.—The civil revision comes before us on a reference by a Single Judge. The facts are that a sale in execution of a rent decree obtained by the appellant was fixed for January 4, 1935. The sale was included in the sale list for that day, but as the sales could not be finished on that day, the Nazir in charge continued them on the following day, on which date the holding of the judgment debtor was brought to sale and purchased by the appellant. On objection filed by the judgment-debtor under Order XXI, Rule 90, the Munsif set aside the sale holding that it was in contravention of Order XXI, Rule 69 having been held on a date not advertised in the sale proclamation and without an express order of the Court adjourning the sale. This order of the Munsif was affirmed by the District Judge on appeal, and this civil revision has been filed against that order of the District Judge and has been referred for decision by a Division Bench. The procedure adopted in this case was in accordance with Rules 14 and 15 of the High Court General Rules and Circular Orders, Vol. I, Part I, Chap. VI, but these rules must be held to be invalid if, as contended by'' the judgment debtor, they contravene the express provisions of Order XXI, Rule 69, which runs as follows :

(1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may, in his discretion, adjourn the sale, recording his reasons for such adjournment: Provided that, where the sale is made in, or within the precincts of, the Court house, no such adjournment shall be made without the leave of the Court. (2) Where a sale is adjourned under Sub-rule (1) for a longer period than 14 days, a fresh proclamation under Rule 67 shall be made, unless the judgment-debtor consents to waive it; Provided that the Court may dispense with the consent of any judgment-debtor who has not appeared in the proceedings. (3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale.

The Question for our decision is whether or not this rule applies to the present case. For the petitioner we were referred to the Privy Council decision in Rang Lal Singh v. Ravaneshwar Pershad Singh 39 C. 26 : 12 Ind. Cas. 174 : 38 I.A. 200 : (1911) 2 M.W.N. 108 : 10 M.L.T. 161 : 13 Bom. L.R. 823 : 140 C.L.J. 334 : 8 A.L.J. 1173 : 16 C.W.N.I. which refers to Rule 291 of the old Code. In that case the property was included in the monthly sales fixed for July 13, but the sales did not begin until July 17, owing to the absence of the presiding officer from the station, and the property was actually sold on July 20. Their Lordships held that there was no irregularity as the sale was held in the course of the monthly sales. In that case the sale appears to have been held by the presiding officer himself and not by a subordinate officer acting under his direction, but their Lordships do not appear to have contemplated that the various postponements of the sale were adjournments within the meaning of Section 291. In Lalmuhun Chowdhuri v. Nur Mohammad Talukdar 17 C. 152 a Division Bench of the Calcutta High Court pointed out that it was the practice of that Court to place all properties intended to be sold in execution on a list and to proceed with the sales from day to day. It was held that when sales commenced on the appointed day but continued on the following day, there was no adjournment within the meaning of Order XXI, Rule 69. The same view was taken by Single Judges of this Court in Nand Kishore Singh and Others Vs. Nagendra Bala Debi and Others, and Deonandan Thakur Vs. Mt. Hanso Kuer and Others, , Following these decisions I would hold that Rule 69 does not refer to a case where sales on the same sale list held in accordance with the rules of the Court continue beyond the first day. I allow this civil revision accordingly and direct that the executing Court should now proceed to consider the other objections raised by the judgment-debtors in their application for setting aside the sale. Parties will bear their own costs in this Court.

Agarwala, J.

I agree.