Amalabala Dutta vs Oli Muhammad Khan

Das Gupta, J.—This Rule is directed against an order of the learned District Judge, Midnapore, allowing an application against the decision of a Munsif empowered under the provisions of Section 153, Sub-section (b) of Bengal Tenancy Act to exercise final jurisdiction in an application u/s 174, Sub-section (3) of the Bengal Tenancy Act. The application u/s 174, Sub-section (3) of the Bengal Tenancy Act was filed by present Petitioner who is one of several co-sharer tenants of a jama in which a decree was obtained by the landlord for a sum of Rs. 5. The application for execution was filed by the decree-holder some time in 1950. After several attempts to bring the property to sale had failed, an order was passed on June 23, 1951, in these words:

Issue again combined order of attachment and sale proclamation on judgment-debtors, defaulting and fresh concise statements on the judgment-debtors fixing 18-8-51 for sale at 12 noon in the court compound. Sale is advertised.

No sale was held on August 18, 1951 but it was held instead on September 1, 1951. What happened on August 18, 1951, was that after the executing court noticed that the concise statements had not been served on judgment-debtors Nos. 3, 4 and 11 and had been returned with the remark "not known" the court directed the decree-holder to take the necessary steps by August 25, and ordered further, "Put up on the 25th August for orders". On August 25, 1951, the decree-holder prayed that the sale might be held "at his risk". The learned Munsiff passed the following order:

The execution case is an old one. Perused the decree-holder''s petition. Let the property be put up to sale on 1-9-51 at 12 noon and decree holder''s him risk.

As already stated, the sale was held on September 1, 1951. The property was purchased by opposite parties Nos. 1, 2 and 3 for the sum of Rs. 7,000. The application u/s 174, Sub-section (3) was filed on February 27, 1952. It was alleged therein that there had been "material irregularity in publishing and conducting the "sale" and the property had been sold at a very low price inasmuch as the proclamation had not been openly served at all and, so the intending purchasers could not know of the sale and that consequently the applicant sustained substantial injury. The learned Munsif came to the conclusion on a consideration of the evidence that the "sale proclamation and the concise statement were duly "served and none of the processes were suppressed in the "execution case." He also held that the sum of Rs. 7,000 at which the property was sold was a fair and proper price. In this view he dismissed the application.

As the Munsif was empowered u/s 153 Sub-section (b) of the Bengal Tenancy Act no appeal lay against his order. That section, however, provides:

The District Judge may call for the record of any case, in which a judicial officer as aforesaid has passed a decree or order to which this section applies, if it appears that the judicial officer has exercised a jurisdiction not vested in him by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of his jurisdiction illegally or with material irregularity, and may pass such order as the District Judge thinks fit.

The application that was filed before the District Judge prayed that he should exercise the powers vested in him under this proviso to Section 153 of the Bengal Tenancy Act. The District Judge has not, as he could not in exercise of his powers under this section, reversed the finding of the trial court that the sale proclamation and the concise statements made were duly served and that none of the processes were suppressed in the execution case. He, however, went into a question which appears neither to have been taken nor discussed before the trial court at all, namely, that though it was proclaimed that a sale would be held on August 18, 1951, it was held on September 1, 1951, without any proper order under Order XXI, Rule 69 of the Code of Civil Procedure. It is necessary at the outset to point out the error committed by the learned District Judge in thinking that under Order XXI, Rule 69 of the CPC the executing court can postpone a sale by seven days of its own motion and in order that he could postpone it for a longer period the consent of the parties was necessary. He has apparently overlooked the amendment of Order XXI, Rule 69 of the CPC by this High Court as a result of which the court can adjourn the sale for one calendar month of its own accord. It may well be said that this mistake amounts to a material irregularity committed by the learned Judge in exercising his jurisdiction.

Mr. Grupta appearing for the Petitioner has, however, raised a more fundamental issue. He has contended that in interfering with the order passed by the Munsif the District Judge exercised a jurisdiction not vested in him by law. The jurisdiction, the District Judge apparently claims to have exercised was nothing more than the jurisdiction conferred on him by the proviso to Sub-section (b) of Section 153 of the Bengal Tenancy Act. From the provisions thereof which I have already set out above it is clear that it gives the District Judge jurisdiction only in four cases, namely, (1) where it appears that the judicial officer has exercised a jurisdiction not vested in him by law, (2) where the judicial of the has failed to exercise a jurisdiction so vested, (3) where the judicial officer has acted in the exercise of his jurisdiction illegally, and (4) where the judicial officer has acted in the exercise of his jurisdiction with material irregularity. The learned District judge said that no sale proclamation nor any concise statement was served for the sale on September 1, 1951, and further that that sale as mentioned in the sale proclamation that was ordered on June 25, 1951, to be held on August 18, 1951, was not legally adjourned to September 1, 1951. Then he proceeds to say:

The sale in question was, therefore, undoubtedly without jurisdiction and a nullity. The learned Munsif, was, therefore, wrong in upholding the sale and failed to exercise his jurisdiction vested in him and has acted in the exercise of his jurisdiction illegally and with materials-irregularity.

If the application which the Munsif had to consider had raised the question that the sale was without jurisdiction, it would have been no doubt necessary for the Munsif in law to consider that question even though such a matter cannot properly be raised in an application u/s 174(3) of the Bengal Tenancy Act. On a careful scrutiny of the application that was made, I fail to see any case made therein that the sale was without jurisdiction. It is difficult to see, therefore, how the District Judge could think that by not considering this question the learned Munsif failed to exercise the jurisdiction vested in him. The judgment of the District Judge does not give any indication of any other reason that might have made the District Judge think that the learned Munsif had failed to exercise the jurisdiction vested in him.

It is even more difficult to understand from the judgment of the learned District Judge what made him think that the learned Munsif had acted in the exercise of his jurisdiction illegally and with material irregularity. The question the learned Munsif had to consider in deciding the application which, as already stated, was based on an averment of material irregularity in publishing and conducting the sale and substantial injury being caused to the applicant thereby, was, firstly, whether there had "been any such material irregularity, secondly, whether the applicant had sustained substantial injury thereby. Both these questions, were considered by the learned Munsif and his findings substantially are that there had been no irregularity in publishing and conducting the sale as alleged and that there had been no injury caused to the applicant thereby.

It has been suggested before us by Mr. Roy Chaudhury on behalf of the opposite parties that the learned Munsif was bound to consider the circumstances that though the sale had been fixed by the sale proclamation to be held on August 18, 1951, it was held on September 1, 1951, without there being a proper order of adjournment of the sale under the provisions of Order XXI, Rule 69 of the Code of Civil Procedure. It is important to notice that the application u/s 174(3) of the Bengal Tenancy Act did not itself make any reference to this circumstance. It seems not unlikely that this question was not raised even at the time of argument before the learned Munsif. It is (sic) say, therefore, that the learned Munsif committed (sic)re in omitting to consider the question whether the holding of the-sale on September 1, 1951, in the circumstances mentioned above, amounted to a material irregularity in conducting the sale.

Assuming, however, it was necessary for the Munsif, even-though the question had not been raised in the application at all,, to consider for himself this circumstance which was apparent on the face of the record, I find it difficult to agree that this was a material irregularity in conducting the sale. The circumstances are these: On June 25, 1951, the court passes an order for issue of sale proclamation for a sale to be held on August 18, 1951, and for issue of concise statements. Sale proclamation is issued and'' concise statements are sent in the prescribed form. On August 18, 1951, when the matter is placed before the court again, the court finds that the concise statements have not been served on three-out of the 19 judgments-debtors. It does not hold the sale on that date but passes an order that steps should be taken by the judgment-debtors in the matter of service of concise statements and'' says, "Put up on the 25th of August, 1951". On August 25, 1951 the court passes an order directing that the sale will be held one September 1, 1951. It was argued by Mr. Roy Choudhury that as there was no order on August 18, 1951, specifically adjourning the sale to September 1, 1951, the holding of the sale on September 1, 1951, was irregular. In my judgment, it is hyper technical to bold that though on the date fixed for the sale the sale is not held and on a latter date within the period of 30 days up to which the court may under Order XXI, Rule 69 of the CPC adjourn the sale, the court fixes a date for the sale-which again is within such period, the provisions of Order XXI, Rule 69 of the CPC have not been complied with. In my judgment, there is substantial compliance with the provisions of law when, as in this case, there is, at first, an order by the court specifically stating that the sale will not be held on that date and later on there is another order fixing the date and hour of the sale,-within the period of 30 days up to which under the provisions of Order XXI, Rule 69 of the CPC as amended by this Court, it can adjourn the sale.

I have, therefore, come to the conclusion that the circumstance-that the sale was held on September 1, 1951, though the date mentioned in the sale proclamation was August 18, 1951, did not amount to a material irregularity in conducting the sale and consequently the omission by the learned Munsif to direct his attention to this matter cannot be said to have amounted to such a material irregularity in the exercise of jurisdiction that could give the learned District Judge jurisdiction to interfere with the Munsif (sic)rer the provisions contained in the proviso to Section 15(sic) Bengal Tenancy Act.

It is important in this connection that the mere fact that there has been a material irregularity in conducting the sale would not entitle the applicant to relief u/s 174(3) of the Bengal Tenancy Act, for the proviso to Section 174 of the Bengal Tenancy Act provides that no sale shall be set aside on any such ground "unless "the Court is satisfied that the applicant has sustained substantial "injury by reason of such irregularity or fraud". Assuming for the sake of argument,-though I have already mentioned my conclusion that there was no material irregularity-that the circumstance mentioned above that the sale was held on September 1, 1951, amounted to a material irregularity in Conducting the sale, the sale could not be set aside unless the Court was satisfied that the applicant had sustained substantial injury. The learned Munsif recorded a definite finding that the sum of Rs. 7,000 for which the property had been sold was a fair price. In these circumstances, the sale could not be set aside even if there had been a material irregularity.

It is to be noticed that the learned Judge has not directed his attention to these requirements of law, namely, that no sale shall be set aside unless the court is satisfied that the applicant has sustained a substantial injury. The reason is that he preferred to proceed on the basis that the sale was without jurisdiction even though that was not the case at all taken in the application u/s 174(3) of the Bengal Tenancy Act. Where the definite case of the applicant is that there has been a material irregularity in conducting and publishing the sale, it is neither proper nor necessary for the court to go into the question whether the sale was without jurisdiction. I have no hesitation in stating my own view that though the sale was fixed for August 18, 1951, but was held on September 1, 1951, in the circumstances as stated above, the legal position is not that the sale is without jurisdiction and that the utmost that can be said, is that there was material irregularity in conducting the sale. Our atention was drawn to an observation in the case of Motahar Hossain v. Mohammad Yakub (1924) 40 C.L.J. 311 in which the sale was held to be without jurisdiction in the following circumstances July 1, 1922 were date fixed for the sale. That date happened to be a holiday and the sale could not take place. In a title Suit commixed by the sisters of the judgment-debtors claiming the property, an order was made on July 4, 1922, that the execution case should be put up on July 7, with an application for injunction to restrain the sale. On July 7, the injunction was refused and the property was put up for sale on that date and was sold. The observation to which our attention was drawn is in the following words:

It seems to us that there was nothing to lead the judgment-debtors to expect that any sale of the property would take place or the 7th of July in the circumstances we think that the sale was really a nullity and that the only course open to us is to make the rule absolute in the terms in which it was granted.

No reasons have been given in tbis case for the view taken and it is difficult to understand that made the Court think that the sale was a nullity. It was mentioned, however, clearly that it was in the particular circumstances of the case that the sale was considered to be a nullity. In my judgment, there is no justification for extending the views expressed in Motahar Hossain''s (1924) 40 C.L.J. 311 case in the circumstances of that particular case to this case. I have, therefore, come to the conclusion that the learned Judge totally misdirected himself in the matter and that he assumed jurisdiction which the law had not vested in him.

I would, accordingly, set aside the order passed by the learned District Judge and restore the order passed by the learned Munsif.

The opposite parties will pay to the Petitioner the costs of this Rule and also the costs incurred by him in the courts below.

Debabrata Mookerjee, J.

I agree.