Raja Thakur Barmha v. Jiban Ram Marwari

1. This is an appeal against a judgment and decree of the High Court of Judicature at Fort William in Bengal, dated 26th June 1906, affirming an Order of the Court of the Subordinate Judge of Godda in the Sonthal Pergunnahs, dated 20th December 1904, granting a certain sale-certificate to the second set of respondents hereto, described as auction-purchasers. The facts of the case so far as is necessary for the decision of this appeal are as follows:

2. On the 23rd October 1903 the respondents Jiban Ram Marwari and Ishwar Das Marwari (described as the decree-holders), obtained judgment against the original appellant Rajah Thakur Barmha (now represented by his heirs and legal representatives), for a sum of 42,562 rupees and interest, and on the 31st October 1903 the decree-holders applied for execution of the decree by attaching and selling the property mentioned in the application. It is only material to refer to the first item in the Schedule specifying that property which reads as follows:

The defendants' Zaiuindari aud Milkiat right in the 6 annas out of 16 annas of Mahal Tappa Patsanda bearing towai No. 462 and sudder-jumma of Rs. 2,402-9-0 (for the 16 annas) payable in Dumka Colleotorate. This property is mortgaged in the bond of Babu Anant Ham Marwari and others, decree holders, inhabitants of Bazar Shujaganj in the Town of Bhagalpur, and also a 2 annus share of the said Mahal, which has been hypothecated as security on behalf of the defendant in the case of execution of a mortgage-decree of the said Babu Anant Bam Marwari and others, deoroe-holders, against the judgment-debtor, in the First Court of the Subordinate Judge of Bhagalpur, in all, 8 annas share of the said Mahal, together with all rights and interests of the judgment-debtor and the Kamat land, nami and beuami jalkar, phalkar. bankar &c, and Eachari House appertaining to the Estate. The estimated value is Bs. 50,000.

3. In the ordinary course an order was made for the sale of the attached property mentioned in the above schedule by public auction, and proclamation of the sale was made in the required manner. The sale commenced on the 16th June 1904, but for a long time the bids were insufficient and the sale was not finally concluded until the 28th day of July 1904.

4. On the 20th day of December 1904 an application was made on behalf of the auction-purchasers to obtain a sale Certificate for the six annas share of Tappa Patsanda purchased by them at the auction sale. In making this application they alleged that a mistake had been made in the schedule of the property to be sold in that the word "not" had been omitted from the description of the six annas in question and that the property should have been described as being six annas not mortgaged under the bond of Babu Anant Ram Marwari. At that date Moulton ten annas of the property were so mortgaged while the remaining six annas were free from any mortgage. They claimed that their certificate should be made out as being a certificate of the purchase by them of the six unencumbered annas instead of (as described in the schedule) six annas subject to the existing mortgage. The Subordinate Judge granted them a certificate in the form which they desired and the High Court sustained his Order. It is from this Order that the present appeal is brought.

5. Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers. In the present case that property was six annas subjsct to an existing mortgage. The effect of the certificate of sale granted by tie order of the Subordinate Judge is to make the sale that of a property not attached, namely the six unencumbered annas, a property which could not be sold in such proceedings inasmuch as it was not the property attached.

6. An attempt was made to treat the matter as a case of misdescription, which could be treated as a mere irregularity. But in this case we have to deal with identity and not description. A property fully identified in the schedule may be in some respect misdescribed, but that is not the present case. Here we find an existing property accurately described in the schedule, and the Order of the Subordinate Judge grants a sale-certificate which states that another and a different property has been purchased at the judicial sale. It was beyond the powers of the Court to make such an Order, inasmuch as there was no power to sell in these judicial proceedings the property thus certified to have been purchased.

7. Counsel for the respondents sought to support his case by referring to documents in other judicial proceedings tending to support the view that a mistake had been made in drawing up the, schedule, and that the property intended to be inserted. therein was the unencumbered 6 annas. Their Lordships are of opinion that all such matters irrelevant. If by a mistake the wrong property was attached and an Order made to sell it, the only course open to the decree-holders on the discovery of the mistake was to commence the proceedings over again. They could not turn an authority to sell one property into an authority to sell another and a different one. Moreover it is impossible to attribute to the public to whom the attached property is offered in sale a knowledge of proceedings in other suits which might have led them to suspect that an error had been made. The only relevant document brought to their Lordships' notice in this respect was an advertisement in the "Calcutta Gazette" which, though purporting to be a description of the attached property, differed from the description in the schedule by representing that the property to be sold was free from the mortgage. This want of correspondence between the advertisement in the "Calcutta Gazette " and the schedule of the attached property in the proclamation of sale constitutes an additional irregularity which it might need the assistance of the Court to cure if the sale were regular in other respects, but it cannot validate a sale of property which was not the property to which the attachment related.

8. Their Lordships therefore will humbly advise His Majesty that this appeal should be allowed, and that the Order of the Subordinate Judge confirming the sale together with the certificate granted there under dated the 20th December 1904 should be set aside. This will of course have the effect of setting aside all subsequent proceedings on the part of the auction-purchasers based thereon.

9. The respondents will pay the costs of the application to the Subordinate Judge of the 20th December 1904 and of the appeal to the High Court of Judicature at Fort William in Bengal, and also the costs of this appeal.