Lal Mohun Chowdhuri vs Nunu Mohamed Talukdar, … on 17 July, 1889

Calcutta High Court
Lal Mohun Chowdhuri vs Nunu Mohamed Talukdar, … on 17 July, 1889
Equivalent citations: (1890) ILR 17 Cal 153
Author: T A Ghose
Bench: Tottenham, Ghose


Tottenham and Ghose, JJ.

1. This is an order of the Munsif declining to set aside a sale on the alleged ground of irregularity in publishing and conducting it, and on the allegation that, in consequence of such irregularity, the property was sold for an inadequate price.

2. The Court below has found that there was no irregularity; and, therefore, although the price really was inadequate, the petitioner is not entitled to any relief; and in that decision we agree. The burden of proving the irregularity in publishing and conducting the sale lies on the judgment-debtor, and he must prove that no proclamation was duly published. The evidence on this point is as unsatisfactory as could be imagined, and, as the learned Pleader for the appellant pointed out, is of the most ordinary character, which never carries any weight. But it has also been brought to our notice that the petitioner more than once obtained the adjournment of the sale on the understanding that he would have no objection on the ground of non-publication of the sale proclamation. We think, therefore, that as far as the publication of the sale proclamation goes, the judgment-debtor has failed to prove that there was any irregularity whatever.

3. Then, as to the irregularity in the conduct of the sale, the only irregularity pointed out is, that the person who purchased the property, who is not the decree-holder, spread disparaging remarks calculated to deter intending purchasers from bidding for the property, the disparaging reports being that the property in question was mortgaged to several persons, and that it had already been sold at a previous execution-sale. The cases of Woopendronath Sircar v. Brojonath Mundul 9 C.L.R. 263 : I.L.R. 7 Cal. 346 and Rukhinee Bullubh v. Brojendronath Sircar I.L.R. 5 Cal. 308 were cited to us; in which it was held that conduct of this kind did amount to irregularity. But, in those cases, the persons who committed the irregularity, in the one case was the decree-holder himself, and, in the other case, his mookhtear; and, in the case of the decree-holder, it is evident that he being, to a certain extent, concerned in the conduct of the sale, his interference, no doubt, unchecked by the Court, might amount to irregularity in the conduct of the sale. But those cases do not meet the case before us. In this case the irregularity is alleged to have been committed by an outsider, who was afterwards the purchaser. The case of Gunga Narain Gupta v. Annunda Moyee Burrooanee 12 C.L.R. 404 seems to us to be in point. There it was held that the disparaging remarks made by bystanders, or by persons who purchased the property, not the decree-holder, could not constitute such irregularity as would render the sale liable to be set aside under Section 311.

4. The other point taken before us was that there was a further irregularity inasmuch as the sale did not take place on the day appointed. It appears that the sale was fixed for the 1st of October; then it was adjourned to the 6th November, on which date the sales commenced, the sale of this particular property taking place on the 10th. The practice of the Courts under the Rules of this Court, which have the force of law, is to place all properties intended for sale on a list; and the sales commence on the clay fixed, which must go on from day to day till the list is cleared. It appears that the sales commenced on the 6th, and went on from day to day; this particular property did not come on, for want of time, on any of these days; its turn came on the 10th. We think that that is no adjournment within the meaning of Section 291, and that there was no irregularity.

5. We accordingly dismiss the appeal with costs.

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