Mt. Subhrani Saraswatain vs Krishna Prasad Thakur and Others

Allanson, J.—This application arises out of an order of the learned District Judge of Darbhanga disallowing an application of the judgment-debtor under O.21, Rule 90, Civil P.C. He found that there was no suppression of processes The application is directed against his finding that there was no gross under-valuation of the property and that the price fetched was a fair price. In a previous application under Order 21, Rule 90, it was decided by the then District Judge that the value of the land was Rs. 3,000. In the sale proclamation, now under consideration, the decree-holder put the value at Rs. 1,400 and the auction purchaser, the opposite party, bought the property for Rs. 1,500, The learned District Judge has held that the auction-purchaser was no party to the previous decision which is not binding on him, and that the evidence shows that there was no gross under-valuation.

On behalf of the petitioner it is contended that the previous decision is res judicata and is binding on the auction purchaser as a person claiming under the decree-holder; that the decree-holder intentionally under-valued the property, and that it cannot now be held that the property is worth less than Rs. 3,000.

On behalf of the auction purchaser it is urged that the findings of fact conclude the matter. EVen if there had been deliberate under-valuation, it must be proved that the judgment-debtor has suffered substantial injury and that this is a question of fact decided by the findings of the learned District Judge.

Three question arise, on the answer to which the decision depends. The first is, was there a misstatement of the valuation of the property in the sale proclamation such as was calculated to mislead intending bidders? In my opinion when in a previous proceeding between the decree-holder and the judgment-debtor the District Judge had found the value of the property to be Rs. 3,000, it was a misstatement to put down Rs. 1,400 in a subsequent sale proclamation, and this was a material irregularity. The second question is whether the applicant has sustained substantial injury as the result, of such irregularity. This is a question of fact and it has been found against the judgment-debtor by the Court below. If the previous decision is not binding on the auction purchaser, then the question is decided by the finding that there was no substantial injury. The third question is whether the auction purchaser can successfully contend that the finding of the District Judge in the previous execution proceeding is not binding on him. The learned advocate for the applicant relied on Krishnabhupati Devu v. Vikrama Devu [1895] 18 Mad. 13, where it was held that a privity exists between a decree-holder and the auction purchaser, the latter representing the former in so far as he had a right to bring the property to sale. When the plea of estoppel is available to the decree-holder, it is also available to the auction purchaser.

The point in the present case is not free from difficulty, but after consideration I am of opinion that the auction purchaser is not the representative of the decree-holder in the present proceedings, and that the finding of the District Judge in the previous proceeding is not res judicata so far he is concerned. He was entitled to show that there was no gross under-valuation of the property and that the price fetched was a fair one. On both these points the learned District Judge has found in his favour. There is nothing in the fourth ground taken that the decree-holder purchased without the permission of the Court through the opposite party and that there was no genuine bid.

The application is rejected with costs, hearing-fee one gold mohur.