Rajbans Sahay and others vs Askaran Baid

Jwala Prasad, J.—This appeal is directed Against an order of the Subordinate Judge of Gaya, dated the 21st June, 1920, dismissing tie application of the appellants-judgment-debtors under O. XXI, R. 90 of the CPC for setting aside the auction sale, dated the 24th April, 1920, on the ground of material irregularity and fraud in publishing and conducting the sale, and the consequent inadequacy of price thus causing substantial injury to the judgment debtors.

On behalf of the judgment-debtors it is contended that the price fetched at the auction sale was inadequate by the sum representing the difference between the price mentioned in the sale proclamation and that fetched at the sale, namely Rs. 56,200. He further contends that this inadequacy of price which is a substantial loss and injury to him is due to the material irregularity and fraud in publishing and conducting the sale.

No substantial evidence, however has been given by the judgment-debtors to show what the true value of the properties is, and as observed by the Court below the collection papers which must necessarily be with them have been withheld, The Court below found that one of the important villages Upraul Hamza was held by mukarraridars and practically no profit was made out of it by the judgment-debtors. The Court below was therefore perfectly justified in holding that the judgment-debtors failed to establish that the price fetched at the auction sale was not the true value of the properties in question.

The learned Vakil on behalf of the judgment-debtors does not say that the properties in question were under-valued in the sale proclamation; he contends that the valuation of Rs. 1,28,000 entered by the lower Court in the sale proclamation should be deemed to be the true value of the properties. He has referred us to various authorities in support of his contention. Those authorities do not go beyond holding that a proper estimate of the value of the properties to be sold is a very material fact for the purchasers to know and, therefore, the value should be ascertained as nearly as possible by the Court in order to specify the same in the sale proclamation.

The leading case on the subject is the case of Surendra Mohon Tagore v. Hurruk Chand (1908) 12 C. W. N. 542 but that case as well as the subsequent authorities have emphasised the fact that a very elaborate enquiry should be made as to the true value of the property at the stage of issuing the sale proclamation. True it is that if a very grossly low valuation is shown in the sale proclamation the bidders might possibly be dissuaded and the property may fetch an inadequate price.

In the present case the value of the property mentioned in the sale proclamation was almost double the sum fetched at the auction sale. Therefore, no bidders could possibly have been dissuaded by the value mentioned in the sale proclamation. No authority, however, has been shown to us that the value fixed by the Court for the preparation of the sale proclamation under O. XXI, R. 66, must be accepted as the true value of the property. Neither the Court nor the parties are in a position at that stage to appraise the real and proper price of the property.

After all the value mentioned in the sale proclamation is a mere estimate which of course should as far as possible be a fair estimate, whereas if the sale proclamation is regular and there is no defect in the title, etc., of the property, the value fetched at the auction sale on a competition between bidders is the real market value of the property and must be deemed for the purpose of O. XXI, R. 90, to be the proper value of the property.

We therefore have no hesitation in holding that the judgment-debtors have absolutely failed in this case to establish that the value fetched at the auction sale was in any way inadequate or that they suffered any material loss. A reference to the bid sheet will at once show that there was no lack of bidders at the time and there was keen competition. Consequently the price fetched was the best that the property could obtain.

As there has been no material or substantial injury to the judgment-debtors they are not entitled to have the sale set aside even if it were established that there were irregularities or fraud in the publication and conduct of the sale. We have however heard in very great detail the learned arguments of Mr. Lachmi Narain Singh as to whether there was any irregularity in the publication and conduct of the sale and we have no hesitation in stating at once that no material flaw has been detected anywhere. (His Lordship after dealing with matters which are not material for the report dismissed the appeal).

Ross, J.:-

I agree.