Ram Jadu Lahiri vs Din Doyal Shah and Others

Harries, C.J.—This is an appeal from an order of a ld Subordinate Judge refusing to set aside a sale. The sale was made after attachment of property under Order 40, Rule 4 of Code of Civil Procedure.

That rule is in these terms:

"Where a receiver -

(a) fails to submit his accounts at such periods and in such form as the Court directs, or (b) fails to pay the amount due from him as the Court directs, or

(c) occasions loss to the property by his wilful default or gross negligence.

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver."

Apparently owing to his conduct the receiver''s property was attached and finally sold by the Court. Application was made to set aside the sale on the ground that the sale proclamation had never been published. The learned Judge, after considering the whole of the evidence, came to the conclusion that the Judgment-debtor had failed to establish non-proclamation of the sale. He further held that the price obtained at the sale was adequate and he dismissed the application.

A point has been taken on behalf of the Respondent that no application lies under Order 21, Rule 90 of the Code of Civil Procedure, and such was the application in this case. The application under Order 21 Rule 90 is an application made where immovable property has been sold in execution of a decree. Quite clearly the property here was not sold in execution of a decree. It was sold in execution of an order made against a receiver and the order for sale and the actual sale might well take place long before any amount is found due from the receiver. In fact contumacious conduct of the receiver may lead to attachment and sale. The order made is appealable under Order 43, Rule 1, but it is not a decree. Therefore it would appear that the provisions of Order 21, Rule 90 cannot apply, as there is nothing expressly extending the provisions of Order 21 to this form of attachment and sale.

Even if Order 21, Rule 90 did apply, nevertheless the Appellant could not possibly succeed. The proviso o sub-. (1) to Rule 90 provides that no sale should be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

The Court found that the price obtained was adequate and it appears to me that there was abundant material upon which that finding could be made. The Judgment-debtor produced nothing to show that land in the vicinity was worth more and indeed a kobala which he had executed, which he did not readily admit, would go to show that the price obtained at the sale was perfectly adequate. That being so, it is quite clear that this application was bound to fail.

The learned Judge had found that the Judgment-debtor had failed to prove that the sale had not been proclaimed. The learned Judge relied upon a peon''s return as raising a presumption that all things had been done properly. The learned Judge, however, overlooked that the peon''s return was not proved. The peon was not called and no evidence was called to prove that the document was in the handwriting of that particular peon. Unless the genuineness of the document be fist established, no presumption can be raised by reason of Section 114 of the Indian Evidence Act. Unless that was so, a presumption would be raised when any bogus peon''s return was put in. The Court must be satisfied that the peon''s return is genuine before Section 114 of the Indian Evidence Act comes into play at all. The peon''s return was not proved in this case. However, the point is wholly immaterial for the reasons which I have given.

In the result, therefore, the appeal must fail and I would dismiss it with costs - hearing-fee, two gold mohurs.

Sarkar, J.

I agree.