Sashinath Choudhury vs Ugranarain Chaudhury and Others

Agarwala, J.—In these appeals by the two plaintiffs arising out of the same suit, the only question is whether an execution sale is void as it was not held on the date fixed but on a subsequent date.

The date fixed for the sale was 8th March 1937. The sale was actually held on the 15th of that month. The Court below has held that no suit lies and the proper remedy was by means of an application under Order 21, Rule 90. Furthermore, the Court has held that possibly the 15th March was the date on which the monthly sales were being held in which view the sale in the present instance would have been entirely regular.

On behalf of the plaintiffs-appellants reference has been made to the decision of the Allahabad High Court in Chedami Lal v. Amir Beg (85) 7 All. 676 in which it was held that a sale before the time fixed for it was a nullity and not a mere irregularity. That case is not of much assistance as it refers to a different state of circumstances altogether.

The next case relied on is the decision in Motahar Hossain Vs. Mohammad Yakub, . In that case the date fixed for the sale was 1st July 1922. That day was a holiday and, therefore, the sale could not be held on it. A title suit was instituted by the sisters of the judgment-debtor claiming the property sought to be sold and praying for stay of the execution sale. In that ease an order was passed on 4th July, directing that the execution case should be put up on 7th July, along with the application for stay. On 7th July, the application for stay was objected to and the property was put up for sale on the same date. It was held that the sale was a nullity. It is to be remarked that an application u/s 90 was made to set aside the sale and in exercise of its revisional jurisdiction the High Court set the sale aside on the ground that it has been held although no date had been fixed for it. That case does not appear to be followed in Gobardhan Behari Bose and Another Vs. Sarat Chandra Bhattacharjee and Others, .

In Jogendra Nath Bhattacharyya and Others Vs. Sheikh Nabi Newaj and Others, it was held that a Court could not treat an execution sale as a nullity on the ground that it was not held on the date fixed for it in the absence of an application by the judgment-debtor under Order 21, Rule 90. The order of the Court below declaring the sale to be a nullity was set aside.

The two last mentioned Calcutta cases are based on a decision of the Privy Council in which it was held in similar circumstances that the holding of the sale on a date not fixed for it but within the period during which the monthly sales take place could not be treated as a nullity.

It is contended by the plaintiffs, appellants that they having shown that 8th March was fixed for the sale and that the sale was not held on that date but on the 15th, the onus did not lie on them of showing that the 15th March was a date on which monthly sales were continuing.

In my opinion, when a. party seeks a declaration that an execution sale is a nullity it is necessary for him to prove the circumstances which would nullify the sale. It is not sufficient for him to show only that the sale was not held on the first day of the month of sales or on the actual date fixed in the sale proclamation, but also to show that the monthly sales had come to an end before the sale was actually held.

In these circumstances the appeals fail and must be dismissed with costs.