Jadunandan Prasad Bhagat and Another vs Wajid Ali Mian and Another

Kulwant Sahay, J.—This is an appeal by some of the judgment debtors against the order of the Subordinate Judge of Pakur, dismissing their application for setting aside a sale under Order 21, Rule 90, Civil P.C. The sale was held in execution of a compromise decree on 12th July 1930 for a sum of Rs. 3,100 subject to an encumbrance of Rs. 1,800. The ground taken by the learned advocate for the appellants is that their objection Hinder Order 21, Rule 90 was dismissed by the Subordinate Judge summarily without taking any evidence. It appears from the application filed under Order 21, Rule 90 that the allegations made in it were such as required evidence to prove them.

For instance, the allegations were that the sale proclamation was not at all published, that one of the. judgment-debtors was dead more than two years ago, and the execution could not proceed without amendment of the execution petition in respect of the deceased judgment-debtor, that the price fetched at the sale was wholly inadequate and that there was material irregularity and fraud in conducting and publishing the sale and that the inadequacy of price was due to such irregularity and fraud. Allegations such as those could not be established without evidence. It appears from the order sheet that on receipt of this application the learned Subordinate Judge made an order on 11th August 1930 to put it up with the record.

3.The next order in the order sheet is dated 12th August 1930 which is to the effect that the petition will be heard and notice was directed to be given to the decree-holder and the auction purchaser, fixing 11th September 1930. The order-sheet shows that on 11th September the appellant was present and the decree-holder was also represented, but that the auction-purchaser had not been properly served and the order made on that date was to issue notice to the auction-purchaser fixing 31st October 1930. These orders appear to have been passed at Pakaur. The next order of 31st October 1930 has an endorsement in the margin which, according to the learned advocate for the appellant, is Amrapara, and the learned advocate states that this order of 31st October 1930 was passed when the Subordinate Judge was in camp at Amrapara at a distance of 82 miles from Pakaur. The order of 31st October shows that both sides were represented by pleaders and arguments were heard, and the learned Subordinate Judge fixed 15th November 1930 for orders. On 15th November 1930, the order sheet shows that orders could not be passed as he had not gone through the record and he directed it to be put up on 17th November for orders. The order of 17th November shows that pleaders were again heard on that date and by this order he dismissed the application as frivolous. It is against this order of 17th November 1930 that the appellants have come in appeal to this Court.

From the order of 17th November 1980 there seems to be no doubt that the learned Subordinate Judge disposed of the application on some sort of preliminary hearing without taking any evidence. The decree-holder had filed a petition refuting the allegations made by the judgment-debtors. The allegations contained in the judgment-debtor''s petition and the decree-holder''s petition of refutation surely raised issues of fact which could not be decided without taking evidence; but it appears from the order of 17th November 1930 that the learned Subordinate Judge thought that he could decide the points without taking evidence upon the allegations contained in the petition and upon the facts appearing on the record of the execution case itself, after hearing the pleaders of the parties. Mr. Sushil Madhab Mullick states that there has grown up a practice in the Court of the Subordinate Judge to dispose of applications under Order 21, Rule 90 without taking evidence. There is nothing before us to show that such a practice has grown up. If such a practice has grown up, it ought to be put a stop to as early as possible. A practice such as this is not warranted by law, and unless the allegations contained in petitions for setting aside sales be such as not to raise issues of fact depending upon evidence but be such as can be disposed of without taking evidence, it is the clear duty of the Court to give the parties proper opportunity to adduce evidence before he can dispose of them. The learned Subordinate Judge thought that he could dispose of the allegations contained in the judgment-debtor''s petition in the present case without evidence, and this is clear from his observations made in his order of 17th November. For instance, in dealing with the allegation about the non-publication of the sale-proclamation the learned Subordinate Judge says:

the objections about the sale proclamation not being made duly and other minor objections of the same kind are all frivolous and have been made for the sake of objection only.

If it was a fact, as is contended for by the learned advocate for the respondent, that the judgment-debtor did not choose to adduce evidence, the easiest thing for the learned Subordinate Judge would have been to say that there was no evidence as regards the allegations of fact contained in the petition and that those allegations had not been proved and then to dismiss the application.

He however does not deal with the allegations and say that they have not been proved but states that the objections taken were frivolous. Again, in dealing with the question as to the death of one of the judgment-debtors the learned Subordinate Judge does not say that there is no evidence to prove the fact of death, but what he says is that "such baseless allegations are made to frustrate the ends of justice."

Then again as regards the allegations of the judgment-debtor that the auction-purchaser was a mere benamidar for the decree-holder and that the purchase was made against the provisions of Order 21, Rule 72, Civil P.C., the learned Subordinate Judge says that

it is usual to make such baseless allegations in order to frustrate the ends of justice.

Having regard to the observations made above, I am satisfied that the learned Subordinate Judge disposed of the application udder Order 21, Rule 90 summarily without taking evidence and without giving opportunity to the parties to adduce evidence and without hearing such evidence. In these circumstances, the order of the learned Subordinate Judge must be set aside and the case remanded to him for re-hearing, after giving the parties opportunity to adduce evidence and for decision of the case according to law.

James, J.

I agree.