Madhu Sudan Das vs Purna Chandra Chowdhuri and Others

This is a second appeal against an order u/s 293 of the Code of Civil Procedure, whereby the decree-holder purchasing at an execution sale has been ordered to pay the difference between the price obtained at a re-sale and the price offered by him at a previous sale, The facts are that after the decree the immovable property of the defendants was put up for sale and was sold to the decree-holder, who had obtained leave to bid for it. He offered Rs. 1,113 This was assented to at the auction and the sale was so far completed, but he did not pay the poundage fee. It thereupon became necessary to put up the property to sale again. This was done and the decree-holder purchased the property for the sum of Rs. 700. The question is whether the difference of price at the two sales was caused by reason of the purchaser''s default. Under the terms of Section 293, it certainly seems to us that it was. The way in which it is contemplated by the law that the judgment-creditor will purchase the judgment-debtor''s property is by means of set-off as described in Rules 5 and 6 of Chapter V of the Rules and Circular Orders of the High Court. These Rules contemplate the payment of a poundage fee. If the poundage fee is not paid there is no express provision of the law applicable, but it is obvious that there must be re-sale, the first sale having failed.

It is argued before us that this case is governed by Section 306 and that the law of re-sale as there laid down has not been complied with. We must, however, hold that this contention is not sound. The case does not in terms fall u/s 306 or the following sections, nor can we hold that the rules there laid down apply in such a way as to make it necessary to have a re-sale conducted forthwith in the terms of Section 303

We hold, accordingly, that this order is correctly made u/s 293 and that the appeal fails and must be dismissed with costs.

We assess the hearing fee at two gold mohurs.