Kalinath Deva Goswami vs Upendra Nath Deva Goswami

Deka, J.—Tins Rule was obtained by the judgment-debtor against an order of summary dismissal of his application under Order 21, Rule 90, CPC The sale was held on 29-5-54 when the decree-holder purchased the property for a sum of Rs. 300/- only. The land measured about five bighas. On 26-6-54, the judgment-debtor made an application, purporting to be one under Order 21, Rule 90, Code of Civil Procedure, stating therein that the price given in the sale proclamation had been too low and the price at which the property was sold was still lower. The learned Munsiff dismissed the petition forthwith with the words "This cannot be entertained. Petition rejected." The sale was confirmed on 30-6-54. On appeal, the learned Subordinate Judge considered whether the application was one under Order 21, Rule 89, CPC and he found that the decretal amount not being deposited as contemplated under Order 21, Rule 89, Code of Civil Procedure, the application was not in order, and he thought that no objection coming under Order 21, Rule 90, Code of Civil Procedure, was incorporated in the petition.

Reading the application as I do, it had sufficient materials for consideration under Order 21, Rule 90, Code of Civil Procedure, inasmuch as the judgment-debtor stated therein that the property would be worth at least Rs. 2,000/-, and that he had suffered considerable loss as a result of the sale of the land for too inadequate a price. He further prayed therein for re-sale of the property, and it further contained an offer of putting in the entire decretal amount. It appears to me that the judgment-debtor was under some confusion as to what he should have actually done, and his depositing the decretal amount would have surely saved him from much trouble, but that cannot in any way debar his rights, if any, under Order 21, Rule 90, CPC and the decision reported in AIR 1945 67 (Privy Council) definitely says that

where the low valuation of the property to be sold in the sale proclamation was based on a misstatement by the decree-holder...and the sale took place at a serious under-value on account of the failure on the part of the Court and the decree-holder to carry out their obligations under Rule 66 to ascertain the true value of the property...the judgment-debtor must be taken to have sustained substantial injury thereby.

In the opinion of their Lord hips, the case under those circumstances, falls within the language of Rule 90, and the sale should be set aside if the judgment-debtor, however dilatory and unsatisfactory his conduct may have been, has not otherwise debarred himself of the right to have the sale set aside.

There is also the principle of waiver to be considered. Their Lordships had opined that "if the decree-holder knew the true value of the property but deliberately under-valued it in the sale-proclamation and himself purchased the property at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the Court, and he would not be allowed to take advantage of his own fraud whatever the conduct of the judgment-debtor might have been".

In the present case, the case of the judgment-debtor might not be equally strong, but even then his objections ought to have been considered by the learned Munsiff when the application for setting aside the sale was filed on 26-6-54. The learned Subordinate Judge had completely failed to exercise his jurisdiction in the matter since he endorsed the order of rejection of the application on very unsound grounds. I accordingly direct that the matter should go down to the Court of the Munsifl for an enquiry on the application for setting aside the sale, on taking evidence from the parties if they want to adduce any. The validity or otherwise of the sale would depend on the finding arrived at by the Court as to the merit of this application.

The Rule is made absolute. I make no order as to costs.