Jashimuddin Sarkar Judgment-Debtor v. Manmohini Dasya And Others

1. This is an appeal by the judgment-debtor in an execution case against a decision of the Additional Sub-ordinate Judge of Rajshahi. Four points were urged before us in this appeal. Firstly, it is stated that the approximate value of the land is not stated in the sale proclamation and that this is an irregularity having regard to the provisions of O. 21, R. 66, sub-R. (2c) of the CPC.

2. Secondly, it is stated that the original proclamation described the land for sale as consisting of whole 16 annas whereas subsequently it was found that only 12 annas could be brought to sale. Consequently, it is stated that a fresh sale proclamation should have been issued and that the sale is vitiated by the fact that there was no such proclamation.

3. Thirdly, it is stated that the sale proclamation was not served. Lastly, it is stated that there was a deficiency in the price, having regard to the figures which have been explained to us in considerable detail.

4. Now it appears that no less than three petitions were put forward by the present appellant asking for postponements of the sale and that on each occasion the sale was postponed upon terms.

5. On the first occasion the judgment-debtor stated in his petition that the sale proclamation had been duly served and he agreed that there should be no fresh service and that he would not object on the grounds of illegality and irregularity. The petitions with regard to other postponements were to the same effect except that there was no statement with regard to the due service of the sale proclamation.

6. Now on each occasion the sale was postponed, in the first instance for a month, on the second occasion, for a month and on the third occasion for a similar period and on each occasion the appellant failed to obtain the necessary money. So far as the first point is concerned, there is no doubt that this should have been stated in the sale proclamation but it is an irregularity which does not necessarily vitiate the sale unless we are satisfied that it had a material effect upon the number of the bidders and upon the price that was obtained.

7. We do not think that in the present case either of these has been established. Again so far as the second point is concerned, we do not think that the mere fact that originally 16 annas was set up for sale whereas in fact, only 12 annas was saleable had a material effect on the number of bidders or the price.

8. So far as the third point is concerned, the appellant is clearly debarred by the statements in his first petition from now questioning the service of the sale proclamation. We were referred to the case of Dhanukdhari Singh v. Nathima Sahan(1) as an authority for the proposition that the statements in the petition did not amount to a waiver with regard to the present objections which are urged. But all that case decides is that you cannot waive a thing of which you were not aware, and in that case it was suggested that a fraud could be waived by some statement in a petition although the fraud was not known to the person against whom the waiver was claimed. But the facts of that case are entirely different from the matters which are before us in the present appeal.

9. So far as the last point is concerned, there is no doubt that there was a considerable amount of evidence brought forward on behalf of the appellant to show that the values at which the properties were sold were inadequate. But the learned Judge has very carefully, it seems to us, considered all these questions and he has given what seems to us, valid reasons for holding that no serious deficiency has been established.

10. Now we have been taken through, in great details, the nature of the properties to be sold and great stress has been laid on the fact that these properties were Mourasi Mokurrari and that having regard to this fact the prices obtained cannot be said to be adequate. But on the facts which were before the learned Judge and which are not before us we think it impossible for us to say that the conclusion at which he has arrived was not a possible conclusion. In the circumstances, it seems to us that the appellant has not established to ours satisfaction that there was such a deficiency or inadequacy in price which justify us in setting aside the sale.

11. The result is that the four grounds urged before us fail and the appeal is dismissed with costs as to each set of respondents other than the added respondent. We assess the hearing fee at one gold mohur in each case.

12. Appeal dismissed.