Chandra Bhukhan and Others vs Ramdutt Mahto and Others

Reuben, J.—This order will govern Misc. Appeals Nos. 384 and 387 of 1943 and Nos. 101 and 404 of 1944. All these appeals relate to the execution of a decree obtained by Ramdutt Mahton and another, appellants in Misc. Appeals Nos. 404 and 101, against Chandra Bhushan Misra and Dwijendra Prasad Missir who are the appellants, respectively, in Misc. Appeals Nos. 384 and 387. The Missirs gave certain property in usufructuary mortgage to the decree-holders in the year 1929 for Rs. 34.000. On account of some payments which the mortgagees had to make to the landlords of the property in respect of rent and other demands, the mortgagees got a decree against the Missirs on 11-11-37 for Rs. 9000. In 1938 they proceeded to execute the decree being Execution Case No. 67 of 1938, and brought the entire mortgaged property to sale subject to the usufructuary mortgage and purchased it themselves for Rs. 1045 on 10-11.38. The sale certificate was issued on 28-3-39 and delivery of possession was taken through the Courts on 9 7-41. No further steps appear to have been taken by the decree-holders till the year 1942, when they instituted Execution Case No. 85 of 1942, to execute the decree against the Missirs for the balance of the decretal amount still due. Notice under Order 21, E. 22, Civil P.C., was issued and was served on 23-10-42, and thereupon the two judgment-debtors appeared on 25 11-42 and filed applications challenging the sale on the ground of gross undervaluation and fraudulent suppression of execution processes. They also challenged the validity of the sale on the ground that under the provisions of Order 34, Rule 14, Civil P.C., the dues of the mortgagees on account of their payment to the landlords should have been realised not by a separate decree but by inclusion in the amount secured by the mortgage under the provisions of Section 72, T.P. Act. Limitation was claimed to be saved on the ground that, till receipt of the notice under Order 21, Rule 22 and inspection of the records on 20-11-42, the judgment-debtors had no knowledge of the sale and the proceedings leading up to it. Both these applications have been dismissed by the Subordinate Judge and the present appeals Nos. 384 and 387 have been filed by the judgment-debtors against his orders of dismissal. The judgment-debtors also filed applications challenging the maintainability of the Execution Case No. 85 of 1942, on the ground that it was time-barred.

The previous Execution Case No. 67 of 1938 was dismissed on 13-3-39. The present execution case wag filed on 4-7.42. Limitation was claimed to be saved by two acknowledgments in writing purporting to be signed by the two judgment-debtors and dated July 1910, acknowledging the payment of certain sums towards the decretal dues. The Subordinate Judge has allowed the applications, holding that the acknowledgments in question are forgeries. Appeals Nos. 404 and 101 have been filed by the decree-holders against these two orders.

The first thing to notice in Misc. Appeals Nos. 384 and 387 is the considerable delay that has occurred in the filing of these petitions subsequent to the sale of the property, and the Subordinate Judge rightly set himself to consider whether the judgment-debtors had established that they filed their applications within the period of limitation. In doing so, however, it appears to me that he has paid too much attention to the direct evidence on the point, and has not attached sufficient weight to the circumstances. One of these circumstances is the fact that the property in question was already in the possession of the decree-holders themselves. The notices in execution, apart from the notice under Order 21, Rule 22, are notices that are published at the spot. The property lies in villages Mahipur, Chamaulia, Machhargawan, Borwal and Majnaria, while the judgment-debtors are residents of Narainpur. Apart from the fact that Narainpur belongs to the same thana and pargana as some of these villages, there is nothing to suggest that theses villages are near Narainpur and that the judgment-debtors were likely to know about the publication of the processes at the spot. As regards the notice under Order 21, Rule 22, both the judgment-debtors have gone into the witness-box and have denied that this notice was served upon them. As against this evidence, the Subordinate Judge has relied upon the evidence of the civil Court peon to the effect that the notice was duly served. Neither the report of service nor the deposition of the peon indicates that the peon knew the judgment-debtors from before, and the decree-holders have not examined the identifying witness on whose identification the notice is said to have been served. The position, therefore, is that on the side of the judgment-debtors service is denied by the persons on whom the service is said to have been made, while, on the other side, we have merely the statement of the peon that service was effected. As, however, the peon does not profess to have been personally acquainted with the judgment-debtors, there is no legal evidence that service was, in fact, effected upon them. That being so, there is no option but to accept the denial of the judgment-debtors, which is not challenged by any positive evidence to the contrary.

Another circumstance to be taken into consideration and to which, in my opinion, sufficient weight has not been attached, is the value placed upon the property in the Execution case No. 67 of 1938. This property lying in four or five villages, upon the security of which the decree-holders had advanced Rs. 34,000, "''was valued by them at the paltry amount of Rs. 1045. Upon the face of it, it seems to me the valuation is grossly inadequate. The property which was being dealt with in the Execution case was the equity of redemption. If this equity of redemption was worth only Rs. 1045, it would mean that on property worth in all about Rs. 35,000 the decree-holders advanced a sum of Rs. 34,000. The transaction in question was a usufructuary mortgage: that is to say, the money-lender was to recompense himself from the net income of the property. Even if we take the rate at which this recompensation was expected, at say, 6%'' the annual net income would come to over Rs. 2000 and valuing this at 25 years'' income the total value of the property would be about Rs. 50,000: that is to say the equity of redemption would be worth about Rs. 16,000. This is clearly a case of gross undervaluation, "so glaring in amount that it can hardly have been made in good faith" Sadatmand Khan v. Mt. Phul Kuar (98) 20 All. 412. It was at this price that the property was finally sold, and it is noticeable that the decree-holders were the only bidders at the sale. In such circumstances, it is the duty of the Court to scrutinise with great care the evidence of service and to require the best evidence of such service Bhairab Chandra Sinha Vs. Kalidhan Roy Choudhury and Others, .

The learned Subordinate Judge has also attached some importance to the failure of the party to produce the pleader who is said to have inspected the records before the filing of the applications for setting aside the sale. This remark is qualified by the further remark: "If any inspection was actually made it was simply to create evidence for these cases." It appears that the notices were served on 23-10-1942 and the applications were filed on 25-11-1942. Some time must have been required for the inspection of the records. Provided, we are satisfied that the first intimation which the judgment-debtors received of the execution proceedings was the service of the notice there can be no doubt that these applications were filed within time. As regards this, the consideration of the discrepancy between the price at which the property was sold and the real value of the property, is, in my opinion, very important. Is it likely that, if these judgment-debtors had known that their property, which was worth considerably more, had been sold for only Rupees 1045, they would have taken no steps whatever to get the sale set aside? As I have said, the gross understatement of value cannot be treated as accidental, and accepting this it appears to me that the burden of proof must be laid on the decree-holders auction-purchasers to establish that the person injured by the fraud and seeking to set aside the sale had acquired definite knowledge of the facts constituting the fraud at a time which is too remote to allow him to make the application-- Ramizaddin Basar and Others Vs. Naimaddi Basar and Others, .

The Subordinate Judge has also referred to the deposit of costs by the decree-holders for the publication of the sale notice in a local weekly paper called the Champaran Samachar Patra. There is nothing on the record to show whether the notice was actually published in the paper, and further there is nothing to show that either of the judgment-debtors was likely to see this paper. The mere fact of this deposit, therefore, is not sufficient to affect the weight of the evidence, which is considerably in favour of the judgment-debtors. On a consideration of the evidence as a whole, it appears to me that the notices under Order 21, Rule 22 were not served upon the judgment-debtors and that, therefore, the sale is void--[Durga Singh v. Sugamber Singh] AIR 1941 Pat. 481. Further, the present applications have been made within three years of the date of the knowledge of the judgment-debtors, and the applications are in time. This disposes of the Appeals Nos. 384 and 387.

I turn now to the appeals filed by the decree-holders. The evidence in each of these cases consists on one side of an opinion expressed by a Handwriting Expert to the effect that the handwriting in which the acknowledgment relied upon by the decree-holders is written, does not tally with the acknowledged writings of the judgment-debtor. On the other side, we have merely the unsupported statement of the grandson of one of the decree-holders that the acknowledgment was, in fact, written by the judgment-debtor. Obviously, this witness is an interested witness and there is no reason for this Court to differ from the rejection of his evidence by the Court below. Through some mistake of record the Subordinate Judge in the order against which Miscellaneous Appeal No. 404 has been filed has stated that the Expert was not examined as a witness in that case. This is not correct. He was examined on commission and his evidence has been printed at page 14 of the paper-book. On behalf of the decree-holders we have been taken through the evidence of the Handwriting Expert in both the cases, and it has been pointed out that the Handwriting Expert himself does not claim infallibility for his opinion. This consideration would be of great importance in a prosecution for forgery, in which the onus would be on the Crown to satisfy the Court positively that the handwriting is not the handwriting of the person concerned. In the cases before me, however, it is the contrary proposition which has to be proved, namely, that the handwriting is the handwriting of the judgment-debtors and the onus is on the decree-holders. For the purposes of these appeals it is sufficient that the evidence on behalf of the decree-holders is not sufficient to prove that the Handwriting Expert''s opinion is incorrect. The decree-holders, not having discharged the onus of proof, must fail.

On the above grounds, I would allow the Appeals Nos. 384 and 387 of 1943 with costs, set aside the order of the Subordinate Judge, declare the sale to be void and direct that the execution be proceeded with by issuing fresh sale proclamation. I would dismiss Appeals Nos. 401 and 101 but there will be no order as to costs in them.

Ray, J.

I agree.