Rojoni Kant Bagchi, Auction-purchaser vs Hossain Uddin Ahmed, Judgment-Debtor, Who Appeared, and Sarat Sassi Dassi, Decree-Holder

Stevens, J.—In the case out of which this second appeal arisen, the judgment-debtor, now Respondent, made an application under sec. 311 of the CPC for the setting aside of an execution sale on the grounds that the sale proclamation had not been duly made, that there had been a material irregularity in conducting the sale, inasmuch as the earnest-money was not paid in immediately after the declaration of purchase and that the auction-purchaser had committed a fraud by falsely making to the judgment-debtor a certain promise in consequence of which the latter did not go to Court on the day on which the sale was held. The Court of first instance held that it was not open to the judgment-debtor to contest the due service of the sale proclamation, inasmuch as he had on a former occasion obtained a postponement of sale by waiving his right to have a fresh proclamation and undertaking not to raise any objection on the ground of irregularity or inadequacy of price. As regards the delay in the payment of the deposit the Subordinate Judge found that there was in fact a delay of some two or three hours, but that no substantial injury was made out to have been sustained by the judgment-debtor on that account and held that there was nothing more than an irregularity, which did not in itself vitiate the sale. As for the allegation of fraud, the Court found that it had not been established. The application was accordingly dismissed.

The District Judge on appeal set aside the sale on the ground that the delay in the payment of the deposit constituted an illegality vitiating the sale and that in the circumstances of the case there was a reasonable inference that it had resulted in the property being sold at an inadequate price. He expressed an opinion that the Court of first instance ought to have allowed the judgment debtor to adduce evidence to prove irregularity in the publishing of the sale; but he did not notice the alleged fraud.

The auction-purchaser has now preferred this second appeal from the order of the Subordinate Judge.

It has been objected on behalf of the judgment-debtor that inasmuch as the order of the Court of first instance was made under the provisions of sec. 311 of the CPC and was appealable under cl. (16) of sec. 588 of the Code, no second appeal lies, having regard to the provisions of sec. 591.

On the other hand it has been contended for the auction-purchaser, Appellant, that the mere fact that the judgment debtor''s application contained an allegation of fraud brings the case within sec. 244 of the Code and that a second appeal therefore lies.

In support of this contention the learned counsel for the Appellant has cited the following cases: Prosunno Kumar Sanyal v. Kali Das Sanyal I. L. R. 19 Cal. 683 (1892) decided by their Lordships of the Privy Council and the cases of Ghand Monee Dasya v. Santomonee Dasya I. L. R. 24 Cal. 707 (1897) and Nemai Chand Kanji v. Deno Naih Kanji 2 C. W. N. 691 (1898), which were decided with reference to the Privy Council case. In that case it was alleged that the decree-holder, in collusion with the judgment-debtors, co-sharers and the auction-purchasers, had fraudulently brought the judgment-debtor''s property to sale in breach of an agreement which the decree-holder had made after receiving the judgment-debtor''s quota of the debt due under the decree. It was held that the facts that the purchasers were interested in the questions raised between the parties to the decree did not prevent the operation of sec. 244 of the Code. It was further held that a suit could not be brought to set aside the sale because the question arising between the parties to the decree was determinable under that section. In the case of Chanel Monee Dasya I. L. R. 24 Cal. 707 (1897) there was similarly an allegation that the sale had been brought about by the fraud of the decree-holder in collusion with one of the judgment-debtors, and it was further alleged that that judgment-debtor had purchased the property in the name of another person who was the ostensible purchaser. In the case of Nemai Chand Kanji 2 C. W. N. 691 (1898) it was alleged that all processes had been suppressed and the whole execution-proceeding vitiated by fraud. In both these cases it was held that the allegations of fraud brought them within sec. 244.

We think it may be gathered from these decisions that where a judgment debtor applies to have an execution sale set aside, alleging circumstances which, if found in his favour, would amount to fraud on the part of the decree-holder or the auction-purchaser, the case comes within sec. 244.

It does not appear that the present case falls within that rule. The sale is not alleged to have been brought about by fraud. The application made by the judgment-debtor to the Court of first instance has not been translated and included in the Paper-book which has been prepared for the purpose of the hearing of this appeal; but we understand that the fact alleged against the auction-purchaser as constituting fraud was that he, holding a mortgage upon some of the property sold, told the judgment-debtor that it was not necessary for him to go to Pubna (the place where the sale was held) because he, the auction-purchaser, would release the property from the mortgage lien. It is not easy to understand upon the materials before us how the fact, if established, would constitute a fraud, entitling the judgment-debtor to have the sale set aside. The Court of first instance has found against the allegation, such as it is, and the lower Appellate Court has apparently not considered the matter worthy of notice. The strength of the judgment-debtor''s case was that there had been irregularities in publishing and in conducting the sale. The application purported to be an application under sec. 311 of the Code, and it has been dealt with by the District Judge upon that footing. On the whole we are of opinion that no second appeal lies; and we accordingly dismiss the appeal with costs. Hearing fee 2 gold-mohurs.