Harbuns Sahai And Ors. vs Bhairo Pershad Singh And Ors. on 19 February, 1879

Calcutta High Court
Harbuns Sahai And Ors. vs Bhairo Pershad Singh And Ors. on 19 February, 1879
Equivalent citations: (1880) ILR 5 Cal 259
Author: Ainslie
Bench: Ainslie, Broughton


Ainslie, J.

1. The appeal was filed on the 31st of August 1878, and is from an order dated the 13th of July 1878, setting aside a sale of land in execution of a decree, which decree was made in November 1875. The sale was set aside on the ground of irregularity causing substantial injury. The first application for execution of the decree was made on the 12th of November 1877, after the new Civil Procedure Code came into operation. It is objected that no appeal lies, on the ground that the case is governed by Act VIII of 1859, and that Section 257 of that Act (the old Procedure Code) enacts that an order setting aside the sale shall be final.

2. It is contended, on the other hand, that the order is appealable under Section 588(m) of the new Code, which gives an appeal. It appears to us that the appeal lies. The opinions recorded by the Chief Justice and Mr. Justice Jackson in the Pull Bench case of Runjit Singh v. Meherban Koer (I.L.R., 3 Cal., 662) support this view, and we see no reason to differ from these learned Judges. As regards the merits of the case, the law requires a sale of land in execution to be preceded by a notice published at least thirty days before the sale. The sale in this instance took place upon the 3rd of June 1878. The proclamation was made upon the 10th of the preceding month of May.

3. It is contended, however, that there was a written consent to the sale given by the judgment-debtor, such a consent as by virtue of Section 290 of the new Code does away with the necessity for a proclamation to be made thirty days before the sale.

4. It is further contended that the day on which the sale took place (3rd of June) was really fixed by adjournment, the sale having been originally fixed for the 3rd of May.

5. The written consent upon which the appellants rely is an application made by the judgment-debtor upon the day of the actual sale.

6. This application was for the sale of an eight-pie share of the property, on the ground that such a fractional part would realize by sale enough to satisfy the outstanding balance due on the decree. Section 284 of the new Code authorizes the Court to sell such portion of the property attached as may be sufficient to satisfy the decree.

7. It appears to us that this application did not amount to such a consent in writing as under Section 290 would operate as a waiver of the proclamation. We think that it merely amounted to a request made by the judgment-debtor that if his property must be sold, at any rate it was unnecessary to sell the whole of it; and it is to be further noted that there was a second application to sell a further share of eight pies, which, according to the result of the first sale, would have probably sufficed to satisfy the decree; and that this must be taken to be what the judgment-debtor consented to, if his consent is to be relied on.

8. With regard to the second objection, namely, that the 3rd of June was merely an adjourned day, it appears that the decree was passed on the 29th of November 1875, and the first application for execution was made on the 12th of November 1877. On the 16th of November 1877 the sale was fixed for the 4th of February 1878, and a proclamation was made on the 27th of November 1877 in the Court-house. On the day fixed for the sale, the judgment-debtor applied for a postponement, which was at first refused, but later on the same day the judgment-debtor made another application, and, with the consent of the judgment-creditor, the sale was postponed for a week, on the condition that the judgment-debtor would pay the debt within that period; if he did not do so, the sale was to take place on the 12th of February.

9. On the 11th of February another application was made for postponement. It was granted, and the sale was postponed until the 23rd of February.

10. There was another adjournment until the 1st of April, and a fresh proclamation was made on the 28th of February in the Court-house. Three days before the 1st of April the judgment-debtor applied to have the money raised, not by sale, but by his property being taken under the management of the Collector under Section 326 of the Code. Thereupon the sale was postponed until the 6th of May, and the Court published a new proclamation on the 5th of April in the Court-house. The Court at the same time referred to the Collector asking him to act under Section 326; but as the Collector did not reply, the Court itself fixed the 3rd of June for the sale.

11. The cases cited do not support the contention that this should be treated as an adjourned sale, requiring no fresh notification. The first case–Roy Gowree Nath Sahoy v. Shah Fukeer Chand (18 W.R., 347)–was a mere adjournment de, die in diem, which constantly must happen when the list of properties for sale is more than can be sold in one day. In the other cases fresh notice had been expressly waived. In the present instance the adjournment of the 8th May was not at the request of the debtor, though it may have been in his interest, and there was no waiver; and therefore a strict compliance with the law was requisite.

12. Lastly, on the question of substantial injury, we think that the debtor made out a sufficient case for the cancelment of the sale. He made an application which the Court could have complied with under Section 284. The fact that an eight-pie share had been sold for Rs. 5,000 was good evidence that the application was reasonable, and therefore the Court was bound to exercise its discretion. “Discretion, when applied to a Court of law, means discretion guided by law. It must be governed by rule and not by humour. It must not be arbitrary, vague, and fanciful, but legal and regular”–Lord Mansfield in Wilkes’s case (4 Burrough’s Rep., 2539). The result of the refusal to exercise its discretion has been, as far as we can judge, to sacrifice the property of the debtor, one-half of which might have been saved altogether, whereas it was all sold at an inadequate price. The sale of the entire two-annas share was irregular from want of due notice, and was moreover one which the Court in the exercise of a sound discretion ought not to have held at all.

13. We would therefore dismiss the appeal with costs.

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