JUDGMENT
M. Mitra, J.
1. The connected misc. appeals are directed from the judgment and Order No. 261, dated 12.9.91 passed by the Chief Judge, City Civil Court, Calcutta in Misc. Case No. 59 of 72 arising out of a petition under order 21, Rule 90, read with section 151 of the Code of Civil Procedure filed by the judgment debtor Bhudhar Chandra BanerJee in Money Execution Case No. 17 of 71 and subsequently it was proceeded with by his legal heirs and representatives on his demise. The petitioner in the connected petition before the trial Court has prayed for setting aside the auction sale of the premises in question in execution of the said decree passed in Money suit No. 7 of 66 in Money Execution Case No. 17 of 71 initiated by the decree holder there of.
2. It is necessary to give a brief backgound of the narration of entire facts giving rise to the instant proceeding. As early as on 3.1.66 one J. L. Bothra, the respondent No. 7, instituted Money suit No. 7 of 66 against Bhudhar Chandra Banerjee for recovery of money lent on account of advance together with an interest calcuated about Rs. 4.000/-. The said decree was passed on 20,9.68 and as a follow up to the same Money Execution Case No. 17 of 71 was initiated by the decree holder. In the said execution proceeding an attachment of property was made on 4.3.71 which was followed up by filing of an application for sale under Order 21, Rule 66 of the Code of Civil Procedure and the same was allowed. The concered court issued sale proclamation sometime on 18.6.71 as a result of which premises No. 4B, Jackson Lane, Calcutta was afflicted with an order dated 20,7.71 because of the issuance of a writ of Attachment. Thereupon an insertion was caused to be circulated in the daily issue of Statsman on 5.8.71. On the same being publicised, Bhudhar Banerjee appeared in the Court and filed a petition for a month’s time to pay the decreetal due by 13.9.71. As decreetal dues were not paid, therefore the sale was fixed on 22.10.71 by the Court. The Court did not accept the highest bid at Rs. 4,001/- and it was again re-scheduled on 26.10.71. The same was adjourned on the prayer of the judgment debtor who ultimately failed to pay the decreetal dues and auction was held on 17.11.71, Then Bhudhar Chandra Banerjee filed an application under Order 21, Rule 89 of the Code of Civil Procedure for not confirming the aforesaid auction sale and the application was directed to be put up on 17.12.71. As nobody appeared on 17.12.71 the auction was confirmed. Thereafter the judgment debtor after the expiry of the prescribed period made an application under Order 21, Rule 90 of the Code of Civil Procedure from which the Misc. Case arises. The same was followed up by filing of a petition under section 18 of the Limitation Act for condonation of delay in filing the aforesaid petition under Order 21, Rule 90 of the Code of Civil Procedure. The application out of which the connected Misc, case arises has been sought to be built up on multifarious grounds as reflected from the connected petition. The pleas which have been taken in the petition are to the effect that no notice has been issued or served on the Judgment debtor under Order 21, Rule 22 of the Code of Civil Procedure. The controversy has been raised also on the footing
that the decree holder has put the value of the property under exection at Rs. 75.000/- and the same has been sold for Rs. 4,000/- and odd on account of gross irregularity for alleged fraud practised by decree holder in publishing and conducting the sale. As the publication of the sale has not been properly made according to allegations, therefore, price was not given in the exectution petition for which no prospective bidder was attracted. There has been also allegation of non compliance of strict adherence to provisions of the Order 21, Rule 68 of the Code of Civil Procedure and as such publication of sale appearing in the Statesman on 5.8.71 was vitiated which was bordering on irregularity. There has been further allegations about alleged suppression of the process under Order 21, Rule 66 of the Code of Civil Procedure and complaints were made about non service of the same on the judgment debtor. The said application of the judgment debtor is resisted at the time of trial by three sets of opposite parties. They are namely opposite parties No. 3[a) to 3[c) and 3(e), opposite parties No. 3(f) to 3(g) and opposite party No. 4 who has been subsequently added as a party in the said proceeding. Their case is that of total denial and it has also been contended that the connected Misc. Case is absolutely misconceived being barred by laws of limitation, principles of res judicata, estoppel, waiver and acquiescence. The allegations were denied by assertion that in spite of ample opportunity being obtained by the Judgment debtor for avoiding auction sale, there has been express waiver on the part of the judgment debtor regarding the issue of sevice of further proclamation of sale and judgment debtor cannot now be allowed to take advantage either of his own wrong resulting in a situation created by him. Even, the allegations of fraud were denied. The same is reflected by rejoinder in the opposition filed by the contesting respondents/opposite parties in the misc, case. It appears that during the pendency of the connected misc, case the judgment debtor died on 21.1.80 leaving behind him his successors who are substituted and brought on record in his place by the Court’s order dated 2.2.80 who are continuing with the instant proceeding. The auction purchaser of the premises in question having sold out the said property to the opposite party No. 4 on 24.1.72 who is alleged to have purchased the same in the benami of Mannalal Bari since deceased. On the latter’s demise on a challenge thrown by his legal representatives to the title of said opposite party No. 4 who filed the suit before the Original Side of the High Court at Calcutta in Suit No. 295 of 79 for a declaration that he is the real owner. The said suit was decreed in favour of the aforesaid party where parties to the misc, case were figuring also as parties. By a subsequent order dated 6.10.88 the trial court has allowed the asid opposite party in the connected proceedings.
3. Misc. Appeal No. 1045 of 1992 was preferred by Satyanarayan Bari and others who are original lessors in respect of the property in dispute-and Molla Sirazul Haque, the lessee, who was added as an opposite party in the connected proceeding under Order 21. Rule 90, read with section 151 of the Code of Civil Procedure against the common Order No. 261, dated 12.9.91 passed by the 1st Bench of the City Civil Court, Calcuttal in Mise. Case No. 59 of 72. Both sets of appellants, namely, the lessor and the lessee wanted to defend the auction purchase and they were aggrieved by the common order under challenge and they ventilated their grievances against the same. The
point for consideration at the trial is whether the immovable properties sold in execution of the decree passed in Money Suit No. 7 of 66 is liable to be set aside on the ground inter alia of material irregularity or fraud in publishing or conducting the sale. It is noteworthy to keep it in mind that in F.M.A. No. 1045 of 1993 the Judgment debtors/repondents made an application for appointment of Receiver on the ground mentioned in the said application and Molla Sirazul Haque, the appellant in F.M.A. No. 421 of 1993 opposed the prayer for appointment of Receiver on the plea that both the appeals may be disposed of on the point that application for setting aside of the sale was barred by limitation and accordingly instead of hearing of the application for appointment of Receiver the appeals may be taken up for hearing for disposal. However, the appellants namely Satyanarayan Bari and others in F.M.A. No. 1045 of 1992 took up the stand that all the points in the appeal should be decided once for all. However, at the stage of commencement of the hearing the appellants in one of appeals submitted that the other appeal being F.M.A. No. 421 of 1993 is not sustainable as the appellants in the said appeal being the alleged lessees under the judgment debtors have no right to file an appeal against the impugned order. However, that being a separate chapter which cannot come within the purview of the instant appeal as this misc, appeal arises out of a proceeding under Order 21. Rule 90, read with section 151 of the Code of Civil Procedure, the court expresses its doubt as to whether this court at the appeallate stage can travel beyond the purview of the ambit of the scope of appeal which is restricted within the dimension of the controversy covered by the impugned order which is under challenge before these two appeals are set up for hearing. Therefore, this court allowed both sets of appellants as well as the common respondent to argue on the propriety of the order under challenge and to put forward their respective view points so that court may arrive at its inference about the sustainability of the same which is under scrutiny before it.
4. This court has the occasion to look at the controversy arising out of the connected proceeding resulting in passing of the impugned order. The most important facet of the controversy is as it appears to the court about the alleged under-valuation of the property. The subject matter of the property in question sold in execution is premises No. 4B, Jackson Lane, Calcutta comprising of land measuring about 6 cottahs, 9 chittacks, 42 sq. ft. of which North-Western portion thereof measuring about 6 cottahs. 3 chittacks, 42 sq. ft. has been shown in the Lease Deed in the plan with Red border together with a partly two storied and partly three storied building has been leased out in favour of the opposite party No. 4 Molla Sirazul Haque under Ext. 2. In the sale proclamation, the entire premises of 4B. Jackson Lane, Calcutta was advertised and notified for sale. The judgment debtor has pleaded in paragraph 6 of the connected petition that even the decree holder had put the value of the property under execution being premises No. 4B, Jackson Lane, Calcutta at Rs. 75,000/-, the same had been sold only for Rs. 4,000/-and odd for which he had been seriously prejudiced. The land covering the area of premises No. 4B, Jackson Lane, Calcutta is measured about 6 cottahs with partly two storied and partly three storied building which has been sold in auction in the relevant execution case for a sum of Rs. 4,125/- only. As per evidence of O.P.W. No. 3 Amulya Bhattacharjee from which It emerges that Jackson Lane is situate in the heart of the City of Calcutta and it is a prominent business place. The said premises
prima facie is situate in prime business location of the city. It is needless to reiterate that though estimated value of the aforesaid property appears in the sale proclamation as given by the decree holder is Rs. 75,000/-only but it was sold in auction for a paltry sum of Rs. 4.125/- only. The Judgment debtor has asserted in the connected petition that the property at the relevant point of time is a valuable one and it cannot be less than Rs. 1,50,000/- under any circumstances. Even a reference to Ext. A which is a document dated 12.7.69 where the valuation was shown to be Rs. 25,000/- only per cottah. The property in question measuring more than 6 cottahs of land apart from the structures thereon even if be assumed that the price at the relevant point of time was Rs. 25,000/- per cottah, still price of the land itself should exceed Rs. 1,50,000/-. Even Ext. D relied upon which was was referred to in the impugned order by the trial court from which the valuation had been shown as Rs. 6,000/- only per annum on the basis of the rental of the leasehold properties which would warrant an inference that the valuation of the property would be much more than Rs. 75,000/- only as shown and estimated in the relevant sale proclamation. Even Satyanarayan Ban, O.P.W. No. 1 has clearly admitted in his cross-examination that there was income-tax proceeding after the purchase of the premises in question by his father and the income-tax Department had assessed the price of the property as Rs. 10 lacs which was commented upon by the trial court as to be not improbable having regard to the prime location of the city which is a commercial centre. Even O.P.W. No. 2 Molla Sirazul Haque in the connected proceeding who is O.P.W. No. 4 herein has clearly admitted in his cross-examination that he had no idea about the valuation of land at the place where disputed premises is situate. There has been no specific dispute about valuation referred to by him. The trial court unhesitatingly came to the conclusion that the valuation of the property as indicated in the sale proclamation at Rs. 75,000/- appears to be a gross under valuation which could not have fetched a paltry sum of Rs. 4,125/- for which the sale was liable to be knoked down on 17.11.71. There has been an unambiguous conclusion reached by the trial court that the sale of the premises in question at such a shocking low price amounts to substantial injury and the Judgment debtor one of the present petitioners for which the sale is liable to be set aside. This Court was disturbed by the aforesaid finding and it could not go into at the first blush into the analysis of esoterics of legal niceties when it appears that there was a categorical finding of a valuable property in a commercial area in the prime location of Calcutta is being sold for a song and decree holder stood divested of the property and the same was sought to be sustained under the shield of procedure and legal technicalities. This court therefore before embarking on the points canvassed by the respective parties wants to probe into this question and arrive at its own inference. In this context a reference may be made to the case of Sishir Kumar Mukherjee & Ors. v. Kanyalal Ghewar & Ors. where a Division Bench has held that where a property worth at least Rs. 60,000/- was valued by the decree holder at Rs. 6,000/- which was further reduced to Rs. 1,500/- in the sale proclamation, it will be a case where decree holder would be ascribed with the liability of putting a shockingly low valuation for the property in question covered by proclamation of sale which would amount to fraud on court and would vitiate the sale apart from question of any other material irregularity in establishing or conducting the sale. The case being one of fraud on court, it would
vitiate the proceedings apart from or irrespective of any question under section 18 of the Limitation Act and even for purpose of section 18, fraud on the part of the decree holder would be enough and it would not be necessary for attracting the same to establish fraud on the part of the auction purchaser. In support of the said view a further reference can be made to an earlier decision of Marudhanayagam Pillai v. Mantckavaskam Chettiar, which is considered to be an early landmark decision in support of such proposition. An under-statement of valuation with knowledge of the valuation in the sale peoclamation amounts to fraud. By placement of reliance in the case of Oudh Commercial Bank Limited v. Vindrasan Kuer, . Purushottam Chatterjee. J, in the case of Basanta Kumar Btswas v. Mihirlal Biswas, has held that although the sale could not be set aside if rigours of Order 21. Rule 90 are required to be strictly adhered to or question of limitation arises in the backdrop of sections 17 and 18 of the Limitation Act, still the Judgment debtor should get a fair price for the property sold and the decree holder should not be allowed to make an unconscionable gain by giving a low value in sale proclamation and thus purchasing it at a low price. A further reference ‘may be made to the case of Nakul Chandra Dutta v. Ajit Kumar Chakraborty, where it has been held that sale of a property at a too low price and decree holder purchasing the property at such shockingly low price and if further if it is vitiated by mis-statement as to the valuation of the property, then, prayer of section 17 of the Limitation Act cannot come in the way. If then further irregularity taken in the sale, proclamation itself, then, due to non compliance of Order 21, Rule 67 because of non mention of adequate particulars under Rule 66 would vitiate the auction sale and the same would also amount to an element of fraud. Under-statement of valuation in a sale proclamation may save limitation under section 18 of the Limitation Act and just cryptic mention may be made to the cases reported in 49 CWN 731, 61 CWN 461, the consistent view even of Calcutta decisions including that of 74 CWN 469 is tantamount to be treated as shocking under-valuation in sale proclamation is fraud on court. Apart from making some mentions in the original application under Order 21. Rule 90 of the Code of Civil Procedure there has been a bare assertion about irregularities and fraud practised by the decree holder where a mention was made about under-valuation made in the sale proclamation and also the transaction appears to be a trasaction which is not worthy of any consideration in terms of material index commensurate with the then prevalent market price. No decree holder should be allowed to make unconscionable gain over a judgment debtor with regard to his properties for a song.
5. Mr. Dutta, the learned counsel appearing on behalf of the opposite party No. 4 namely the lessee wanted to defend the purported transaction emanating from the auction sale on the ground of limitation so that a valid claim can be knocked down on the plea of limitation so that decree holder and its allies can make a march for a song over the funeral of the coveted rights of the decree holders. It is needless to reiterate that the amounts for which the transaction as aforesaid took place is only for a sham consideration which is even below than shocking undervaluation. This Court’s conscience is not satisfied to give signal in favour of accrual of rights of decree holders if the same does not fetch any
price and property is merely handed over to the judgment debtor, practically for nothing. It is well-known that proceedings are hand-mades of justice but proceedings cannot be allowed to be resorted to with a view to defeat the conscience of the court and to desecrate justice. For this ground alone this court is prepared without hesitation to uphold the impugned order and to set aside the appeals.
6. Mr. P.K. Dutta, the learned counsel appearing for one set of appellants in F.M.A. No. 421 of 1993 has contended that the connected proceeding under order 21, Rule 90 read with section 151 of the Code of Civil Procedure is barred by limitation. In support of the said contention reliance was placed on Article 127 of the Limitation Act and it has been submitted that the time prescribed for filing of an application for setting aside sale in execution of a decree was 30 days from the date of such sale. The aforesaid Article 127 was subsequently amended with effect from 1.2.77 and by the said amendment the period of limitation was prescribed for 60 days from the date of sale. The argument is centered-round by Mr. Dutta that since the connected application under Order 21, Rule 90 of the Code of Civil Procedure was filed prior to coming into force of the amended provisions of Article 127 of the Limitation Act, the Judgment debtor was required to file the said application within 30 days from the date of sale. Even, it has been stated that the records of the connected execution proceeding will show that Judgment debtor appeared in the said execution proceeding as far back as on 16.8.71 prior to the date of auction sale and prayed for stay of further proceedings by depositing a minor fractional sum of decreetal dues and in view of intervention by the judgment debtor, from time to time, the judgment debtor cannot be permitted to take benefit of section 17 of the Limitations Act as he was also aware of the proceedings in execution. The sale was effected in auction on 17.11.71 and thereafter on 16.12.71 and it was confirmed on 20.12.71. Long thereafter, on 19.1.72 the Judgment debtors herein applied for setting aside of the auction sale under Order 21, Rule 90 of the Code of Civil Procedure and as such it was contended that it was hopelessly barred by limitation. The said question of limitation has been dealt with by the trial court by scrutinising the plea as taken by the petitioner in the connected misc, case that the notice under Order 21. Rule 22 of the Code of Civil Procedure was neither issued nor served upon him in Mony Execution Case No. 7 of 70 even though the decree in the said money suit was passed on 20.9.68 which was more than one year old. The Court while scrutinising the records finds that after disposal of Money Suit No. 7 of 76 on 20.9.68, the Money Execution Case No. 7 of 70 was filed in the year 1970 after lapse of certain period. The said money execution case was dismissed on 20.1.70. Thereafter the said money execution case was again filed on 30.1.71. It has been mentioned in this context that no mention has been made that requisite notice under Order 21, Rule 22 of the Code of Civil Procedure has either been served or issued upon judgment debtor in the subsequent money execution case.
7. This court does not intend to probe into greater detail of strenous submission made by Mr. Dutta that the proceeding is barred by limitation in view of sale proposition of law that shocking under-valuation in same proclamation, plea of limitation cannot be resorted to which is now well settled and as such in view of the analysis before hand about shockingly low price and mode of transaction on a semblance of a facet of consideration will not come to the rescue of such decree holders to have their claim confirmed under the plea of limitation.
8. It is the contention of the contesting parties that the requisite notice was served upon judgment debtor in the previous execution case on premises No. 4, Ray Saheb D.N. Mukherjee Road, P. S. Bally, District-Howrah. It is the positive case of the judgment debtor that he had been at the material point of time a resident of premises No. 1, Ray Saheb D.N. Mukherjee Road, P. S. Bally: District-Howrah and not a resident of premises No. 4 and as such it was not served upon him. References to documentary materials namely Exts. 1 and 1A, notice of the Building Tribunal of Calcutta Municipal Corporation, Ext. E, the Deed of Conveyance dated 14.1.70 entered into between C.I.T. and Bhudhar Chandra Banerjee, the judgment debtor would bear out that he was a resident of premises No. 1 and not of premises No. 4, as aforesaid. Even, according to the formation of the opinion of the trial court. Ext.2 and A would lend further support to said conclusions. The trial Court came to the conclusion that requisite notice under Order 21, Rule 22 of the Code of Civil Procedure has not been served upon Judgment debtor in the Money Execution Case No. 7 of 70 and omission to give such notice would lead to material irregularity. Mr. Banerjee, the learned Advocate appearing on behalf of the common respondent in the connected appeal has submitted that the address of the Judgment debtor has not been properly given and his submission is in tune with the finding recorded in tune with the trial Court’s reasoning. According ot Mr. Banerjee, the provisions of Order 21, Rule 22 of the Code of Civil Procedure is mandatory. A reference was made in support of such contention by Mr. Banerjee to the case reported in AIR 1938 Calcutta 734 which was preceded by an earlier decision reported in ILR 47 Madras 288. As regards limitation, the Judgment debtor in the connected misc. case appears to have specifically pleaded in paragraph 13 of the petition that the petition had been filed on 19.1.72 after getting records examined thoroughly when the irregularities made and the fraud committed by the decree holder had come to his knowledge on 13.1.72. Mr Dutta has also contended before us that price is irrelevant in absence of pleading of fraud. According to Mr. Dutta, the material averments contained in the relevant paragraph in the connected petition about fraud are bereft of particulars and such pleadings are not in conformity with regard to the analogous provisions of Order 6, Rule 4 of the Code of Civil Procedure. In view of present mention in the foregoing paragraph at an early stage that low price quoted in the proclamation of sale and inadequacy of the price fetched on sale proclamation themselves would constitute the ingredients of fraud. It has been the consistent view that the difference of material irregularity and fraud in this context is one of degree. In an action for setting aside sale, the line of distinction between the material irregularity in publication of sale and fraud becomes thin and water-shed of distinction sometimes merges with each other. There may be material irregularities in proclamation and publication of notice of sale and other irregularities resulting from material suppression but if the price quoted appears to be low and the price fetched ceased to be material and has become illusory that ipso facto brings it within the ambit of the purview of exercise of jurisdiction of this Court also as a Court of conscience not to uphold such type of auction sale. Mr. Dutta has also submitted that keeping an application under Order 21, Rule 89 alive a proceeding under Order 29, Rule 90 of the Code of Civil Procedure is barred. According to Mr. Dutta initiation of a proceeding under Order 21, Rule 89 is submission
to the decree. There have been other points raised that Order 21. Rule 90 confers a statutory right and not a common law right and as such inherent right cannot be invoked. In support of the same though Mr. Dutta has attempted to rely on some of the decisions, namely, reported in AIR 1940 Patna 264, and where the facts of the referred cases are palpably distinguishable because there the point has not been decided as to what would happen in a case where reduced price has been shown in sale proclamation and not only transaction has taken place at a shockingly low price but for a song. This Court has already referred in the background of the similarity of the facts of the instant case to certain cited decisions which bear testimony and it believes that the same has been also the recent view of the apex court that no property should be allowed to be handed over by way of a transaction for a consideration which is not by itself a consideration but merely a facade for that with a song for consideration. This Court accordingly for consideration of niceties on the points urged by Mr. Dutta which found support from Mr. Dasgupta, the other learned Advocate appearing for the other set of appellants, does not feel inspired to make an analysis of the same because according to the humble opinion of this Court that the same would be an academic exercise and the said question pale into insignificance because of the cloud engulfing the entire horizon of the controversy of dispute by way of consideration being mentioned with regard to an area of more than 6 cottahs of land in Jackson Lane in prime business locality in Calcutta together with a building thereon as indicated and the same was caused to be sold for Rs. 4125/-. This court cannot reconcile itself to the reality of such situation. Even, some mention was made that the property is encumbered by income-tax liabilities, there is a lessee in possession of the same and there are also other encumbrances attached to the same. Whatever may be the extent of encumbrances, without making any particular mention thereof in terms of their respective valuation there is no material on record which can prompt us to draw an inference the there has been complete erosion of the valuation of the property keeping it as low as a result thereof such a valuable property in the most covetable business area of Calcutta can be sold at a price Rs. 4.125/-.
9. Even, the judgment debtor in the connected petition has taken the plea in paragraphs 9 and 10 thereof that the process of attachment has not been shown in the manner contemplated under the provisions of law. The case has been put forward that there was no compliance of provisions of Order 21, Rule 54 of the Code of Civil Procedure and there has been no affixation of the notice in a conspicuous place as it has been alleged that there was no outer door to the premises No. 4B, Jackson Lane, Calcutta. Bailiffs report indicates that it must be a conspicuous part of the property but here no evidence was found forthcoming from the concerned Bailiff but the court accepted the report of the Bailiff as he was not examined. Even in the trial court’s order there was discussion that north-western portion of primises No. 4B, Jackson Lane was not leased out to the lessee but the same was shown in terms of its entirety in the publication of the Statesman which is marked as Ext. 2. Even the particulars mentioned in the insertion given in the Statesman were described by trial court to be wanting in details. The trial Court also under an impression that there was inadequate information given in
the insertion of the Statesman and as such publication was held to be tainted by material irregularity. This Court only makes a bare mention of the same and it does not intend to embark into a detailed journey of the analysis of the question as it appears to the court that indequate valuation given to sale proclamation ultimately leading to a transaction for a consideration which is for a song and that in turn makes it tainted not only with material irregularity but bordering it on fraud which would vitiate the entire sale transaction.
10. Accordingly, this court feels that there is no scope for the said proposition alone to interfere with the order impugned under challenge and as such the impugned order is allowed to stand as this Appeal Court agrees with the conclusion of the trial court. Accordingly, both the appeals being F.M.A. No. 1045 of 1992 and F.M.A. No. 421 of 1993 are anologously heard and dealt with by this common Judgment and the appeals accordingly stand dismissed on contest.
11. Parties are given liberty to pray for appropriate order with regard to the amount lying in deposit to the credit of the Registrar. Appellate Side and necessary direction may be obtained from the executing court with regard to the proportionate claim of disbursement of the amount and on the basis of communication from the said court, the Registrar will release the amount.
12. Xerox certified copy, if applied for, be supplied expeditiously.
S. K. Tiwari, J.
13. I agree.
14. Appeal dismissed