Surendra Nath Pal and Another vs Akhoy Kumar Pal

After hearing the learned pleaders on both sides, we are of opinion that this appeal must succeed. We are unable to agree with the learned District Judge that the appellants could have adopted the method which he suggests to save their shares of the property from being sold and we are, therefore, unable to confirm his judgment and order. That order is accordingly set aside. At the same time we are of opinion that the lower appellate Court has erred in the way in which it has dealt with the judgment of the Court of first instance. It would appear from what has been stated to us that the difference between the price which the property fetched at the sale and its reputed value was very large and that the Munsif in disposing of the petition to set aside the sale appears to have been influenced by the fact that the disparity was so great that he did not trouble to notice it. As he has not done so we think that the judgment of the Court of first instance cannot be affirmed as it does not contain distinct findings (1) that there were material irregularities in the sale proceedings (2), that there was substantial loss occasioned by the sale to the petitioners and (3) that the substantial loss was the result of such material irregularities. We accordingly set aside the judgment and decree of the Court of first instance also and direct that the case be sent back through the lower appellate Court to the Court of first instance in order that that Court may proceed to deal with the application according to law. Costs will abide the result. We assess the hearing fee in this Court at two gold mohurs.