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Petitioner: SM. BAMA SUNDARI NAMA AND OTHERS VS Respondent: PARESH CHANDRA BHOWMIK AND OTHERS--
P L D 1961 Dacca 812
P L D 1961 Dacca 812
Before Chakraborti, J
Sm. BAMA SUNDARI NAMA AND OTHERS ---Petitioners
versus
PARESH CHANDRA BHOWMIK AND OTHERS--Opposite‑Parties
Civil Rule No. 221 of 1957, decided on 13th August 1957
Bengal Tenancy Act (VIII of 1885)----
------ S. 163‑Omission to issue writ of attachment or concise statement to judgment‑debtor- Only an irregularity and not an illegality‑Sale cannot be set aside for such irregularity.
The decree‑holder applied for execution of the decree under the provisions of Chapter XIV of the Bengal Tenancy Act, 1885 and the mere fact that there was no combined issue of attach ment cannot be said to have taken away the jurisdiction of the Court to hold the sale as it is only' a question of procedure. At the utmost it is only an irregularity and nothing more.
The sale cannot be said to be without jurisdiction, void and illegal on the ground of omission of the issue of the writ, of attachment.
An auction is not invalid for want of attachment, even though the sale proclamation correctly mentioned and described the pro perty which is sold.
Failure to issue concise statement to the judgment‑debtor as required by section 163 (3) (o) of the Act was also nothing but an irregularity and not an illegality. go the sale cannot be set aside on this ground also.
Nareshchandra Mitra v. Mollah Ataul Huq A I R 1931 Cal. 35 rel.
Venkatatasware Ettu Naicker v. Ayyammal and others A I R 1950 Mad. 367 ; Kanueganti Rama manemma v. Kanneganti Basavyya and others A I R 1934 Mad. 558 ; Ram Jadu Lahiri v. Din Doyal Shah and others 54 C W N 810 ; Rajani Kanta Ghose and others v. Sheikh Rahaman Gazi and others 27 C W N 765 ; Ishan Chandra Banikya v. Moomraj Khan 30 C W N 940 ; Sheodhyan and another v. Molla Ataul Huq I L R 21 All. 311 ; Malkarjun Bin Shidramappa pasare v. Narhari Bin Shivappa and another 5 C W N 10 ; Abdul Gafur v. Gura Mia and others 50 C W N 476 ; Rajani Sutradhar and others v. Baikuntha Chandra Saha and another 39 ; C W N 1041 ; Jayerama Aiyer v. Vridhagiri Aiyar 44 Mad. 35 ; Nareshchandra Mitra v. Molla Ataul Huq A I R 1931 Cal. 35 ; Panchanan Das Majumdar v. Kunja Behari Malo 42 1 C 259 ; Thakur Barmha v., Jiban Ram Marwari 41 Cal. 590 ; Macnaghten v. Mahabir Pershd Singh 9.Ca1. 656 ; Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W R 9 (Cr.); Kishory Mohun Roy v. Mahomed Mujaffer Hossain 18 Cal. 188 ; Tincorul Debya v. Shib Chandra Pal Chowdhury 21 Cal. 639 ; Sasirama Kumari v. Meherban Khan 13 C L J 243 ; Muthaiah Chetty v. Palaniappa Chetty A I R 1921 Rang. 124 ; Asutosh Sikdar v. Beharilal Kirtunia I L R 35 Cal. 61 ; Tasaddak Rasul Khan v. Ahmad Hussain 20 1 A 176 ; Gobinda Sal Roy v. Ram Janam Misser 20 I A 165 ; Malkarjan v. Narhari 27 1 A 210 ; Nusservanjee Pestonjee v. Meer Mynoodeen 6 M I A 134 and Subramania Ayyar v. King Emperor 28 I A 257 ref.
Asaduzzaman Khan for Petitioners.
Abdus Salam for Opposite‑Party No. 1.
JUDGMENT
This application under section 115 of the Code of Civil Procedure arises out of a proceeding started under section 174 (3) of the Bengal Tenancy Act.
2. The decree‑holder opposite‑party obtained a decree for rent as against the petitioners' and many others, on the 9th January, 1950 in Rent Suit No. 628 of 1949 in the Court of Munsif, 3rd Court Comilla. The decree was put into execution just when it was going to be barred by limitation on the 9th January 1953 and the property' was sold at Rs. 188‑1‑0 (the decretal amount of costs) and purchased by the decree‑holder: The sale was confirmed on 11‑3‑53 and the execution case was dismissed on full satisfaction. The decree‑holder obtained delivery of possession on 14‑5‑55. On 7‑5‑55 four of the judgment‑debtors namely, Bama Sundari, Jogneswari, Lal Mohan and Sarala Sundari filed an application under section 174 (3) of the Bengal Tenancy Act for setting aside the sale. Their allegations were that the processes of the execution case were all suppressed and the property worth Rs. 20,000 was sold at a normal price of Rs. 188 and odd and the petitioners sustained substantial injury on account of the sale. Their further case is that they did not know about the sale and they first heard about the sale from one Thakurdas Baidya and then they learnt about the sale and then they inquired in the Court and came to know definitely about the sale on 1‑5‑55 and six days after they fled the present application for setting aside the sale.
3. The Petitioners' case was contested by the decree‑holder aution purchasers. The learned Munsif by the judgment dated 1‑2‑56 dismissed the application for setting aside the sale. The learned Munsif, of course, found that the property sold was worth Rs. 14,000 but he found that notices and other processes were duly served in this case and there was no fraud in the matter of publishing and conducting the sale; that there was an irregularity in as much as no concise statement was served on the petitioner Lal Mohan Nama but that this was not enough to set aside the sale. The learned Munsif also found that the low price at which the property was sold was not enough by itself to establish any fraud on part of the decree‑holder‑opposite‑party. There was an appeal by the petitioners and the learned Subordinate Judge who heard the appeal, by his judgment dated 31‑12‑56, dismissed the appeal and confirmed the judgment of the learned Munsif. The learned Subordinate Judge took into his consideration the fact that the property was sold at a low price but he found that there was no fraud in the matter of publishing and conducting the sale and further that the application was barred by limitation. As regards the concise statement, the learned Subordinate Judge's finding is that two of the judgment‑debtors, namely, Bama Sundari and Jogneswari received the letters containing the concise statements by affixing their thumb‑impressions on the acknowledgement receipts and that a mere denial on the part of Bama Sundari was not sufficient to show that the thumb impression were false and forged. The learned Subordinate Judge also found that inadequacy price alone cannot be an element of fraud unless there are other circums tances to show the perpetration of fraud. The petitioner Lal Molian on whom, it is said, no concise statement was served, did not examine himself to deny the receipt of the concise statement. The petitioners thereafter moved this application under section 11'5 of the Code of Civil Procedure before. this Court and obtained the present Rule.
4. Mr. Asaduzzaman Khan appearing on behalf of the petitioners has raised several points in support of his case. He has firstly contended that no concise statement was served on the judgment‑debtors in this case and that was enough to vitiate the sale. He has next contended that there was fraud and irregularity in the matter of publishing and conducting the sale all throughout and the petitioners sustained substantial injury by reason of the sale. He has again contended before this Court that the property was sold at an unconscionably low price ; that the application for execution of the decree was filed just on the expiry of 3 years indicating the greedy intention to swallow the rent‑land ; that delivery of possession was taken on 14‑5‑55 and the petitioners brought a partition suit in respect of the rent land and paid Rs. 750 to save their home‑stead after the auction sale; that the petitioners are still living in their home‑stead on the rent‑land and that these are circumstances from which the learned Courts below should have concluded that the decree‑holders were guilty of fraud and. as there was no service of sale proclamation in this case the petitioners can file their application for setting aside the illegal sale, and as such there is no question‑of limitation. The learned advocate for petitioners has relied on the cases in Venkatalasware. Ettu Naicker v. Ayyammal and others (A I R 1950 Mad. 367) ; Kanneganti Rama manemma v. Kanneganti Basavyya and others (A I R 1934 Mad. 558) and Ram Jadu Lahiri v. Din Doyal Shah and others (54CWN810) in support of his argument.
5. Mr. Salam appearing on behalf of the opposite‑party has, however, contended that it has been concurrently found by both the Courts below that there was no fraud on the part of the decree‑holder and that even if it is found that the concise statement was not served on any of the judgment debtors it was simply an irregularity for which the sale could not be set aside. He has again contended before this Court that the application of the petitioners is hopelessly time‑barred because there is nothing to show that even after the sale there was any fraudulent conceal ment on the part of the decree‑holder for which the petitioners were prevented from placing their case before the Court. Mr. Salam has also argued that mere inadequacy of price and under- valuation by itself are not enough to prove any fraud on the part of the decree‑holder and the Courts below have considered the question of under‑valuation and have found that the sale proclamation under section 163, B.T. Act was duly served and there was no fraud on the part of the decree‑holder‑auction‑purchaser.
6. In the course of argument it was noticed that there was no simultaneous issue of the writ of attachment as provided under section 163 of the Bengal Tenancy Act. Mr. Asaduzzman Khan for the petitioners then argued before this Court that in the absence of attachment the sale was illegal and void and the period of limitation for setting aside the sale would be 3 years and he relied on the case of Venkatatasware Ettu Naicker in support of his contention.
7. Mr. Salam for the opposite‑party, however, contended that the omission to serve writ of attachment is nothing but an irregularity and the sale cannot be treated as void on that ground and he has relied on the cases of Rajani Kanta Ghose and others v. Sheikh Rahaman Gazi and others (27 C W N 765) ; Ishan Chandra Bannikya v. Moomraj Khan (30 C W N 940); Sheodhyan and another v. Molla Ataul Huq (I L R 21 All. 311); Malkarjun Bin Shidramappa pasare v. Nathari Bin Shivappa and another (5 C W N 10) in support of his contention. Mr. Salam has again argued that even if it is found that no concise statement was issued on some of the judgment‑debtors, it would be an irregularity as laid down in Abdul Gafur v. Gura Mia and others (50 C W N 476). He has also contended that there is no escape from the position that the application is time‑barred. Mr. Salam has also argued that the judgment‑debtors have not deliberately stated the tithe when they first came to know about the sale and in the absence of that date they cannot get the benefit of section 18 of the Limitation Act. Mr. Salam has also referred to the case of Rajani Sutradhar and others v. Baikuntha Chandra Saha and another (39 C W N 1041) to support his argument that he is entitled to presume under the Evidence Act that the registered letters containing the concise statements which were correctly addressed must have readied the address.
8. The question of jurisdiction was very strenuously argued before this Court by the learned Advocate for the petitioners. He has contended that although it appears from the record that the parties proceeded under Chapter XIV of the Bengal Tenancy Act there is nothing to show that there was any combined issue of sale proclamation and writ of attachment under that chapter and in the absence of attachment the sale must be treated as illegal and he has relied on the case Venkateswari Ettu Naickr v., Ayyammal and others where Krishnaswari Nayudu, J., laid down the propo sition at page 369 as follows :
"It is no doubt not easy to draw the line between irregularity and illegality, but where a substantial provision of law has been violated as in this case under Order XXI, rule 66 the sale should be regarded as 'having been illegally conducted. The object of Order XXI, rule 66 is to afford a security for the fairness of public sales, that it has been properly published and that it would attract purchasers. But if the specific provision as to proclamation is violated, there could be no doubt that the sale cannot be allowed to stand. It cannot be said that the total failure to make the proclamation under Order XXI, rule 66 is a mere irregularity in the publication or conduct of the sale. In view of the decision in Jayarama Aiyer v. Vridhagiri Aiyar 44 Mad. 35, and the findings of fact of both the Courts, the sale held on 15th September, 1943 must be held to be illegal and void and cannot be allowed to stand and is, therefore, liable to be set aside.
A further point was argued on the question of limitation. It is conceded that if it is an application under Order XXI, rule 90 the provisions of Article 166, Limitation Act would apply, i.e., an application would be filed within 30 days from the date of sale. But in the view that I am now taking that the sale itself is illegal and void, Article 166 would have no application are residuary Article 181 would be the provision that would ‑be applicable to an application of this nature, i.e. three years from the time when the right to apply accrues. If Article 181 is applied, the application is within time:"
It most be noticed drat that was a case where it was found that no sale proclamation had been served. Sale proclamation is a very important document which attracts ‑the bidders and furnished materials on which the purchasers can bid at the sale. In the present case there is a concurrent finding that the sale proclama tion was duly served and there was no fraud in it. The omission is that no combined processes of attachment was issued and served. The object of attachment is to afford protection to the decree- holders, and the auction‑purchasers against the intermediate purchasers: This view is supported by the case in Mareshchandra Mitra v. Mollah Ataul Huq (A I R 1931 Cal. 35) where Mukherji and Guha, JJ. observed at p. 36 :
"The appellant decree‑holder contends that the omission to attach is a mere irregularity, while the respondent Judgment- debtor relies upon Order XX1, rule 64 on Fletcher, J. in Panchanan Das Majumdar v. Kunja Behari Maio 42 I C 259 and r that of the Code and two decisions, namely, the deci sion of the Judicial Committee in Thakur Barmha v. Jiban Ram Marwari 41 Cal. 590 for the proposition that the sale was with out jurisdiction. The question arose under Act VIII of 1859, in the case of Macnaghten v. Mahabir Pershad Singh 9 Cal. 656 but was given tip and so was not decided. It also arose under that Act in the case of Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W R 9 (Cr.) in which it was held that an attachment eras not an essential preliminary to a judicial sale. It again arose under the Code of 1882 (compare section 284, of which the wording was the same as in Order XXI, rule 64 of the present Code) in Kishory Mohun Roy v. Mahomed Mujaffar Hossain 18 Cal. 188, where it was held that the attachment is a measure resorted to for the protection of the decree‑holder and the purchaser against intermediate alienation, and that, after a sale has been confirmed, it is not to be considered a nullity because there was no attachment. This view was approved of in the case of Tincorul Debya v: Shib Chandra Pal Chowdhury 21 Cal. 639. Absence of attachment has been considered a mere irregularity in Sheodhyan v. Bholanath ; Sasirama Kumari v. Meherban Khan 13 C L J 2 43 Muthaiah Chetty v. Palaniappa Chetty A I R 1921 Rang. 124.
The case of Panchanan Das Majumdar v. Kunja Behari Mal, is the only case of this Court, in which a different view has been taken. We are unable to agree in the interpretation that has given to the decision of the Judicial Committee in. the case of Thakur Barmha v. Jiban Ram Marwari, upon which it purports to proceed. In the case before the Judicial Committee, the property that was under attachment and sold was a 6 annas share of a mahal subject to a mortgage, and after the purchaser applied for correction of the certificate of sale by adding the word "not" to the description of the property, the result of which would be to pass an unencumbered 6 annas share, an entirely different property from what was attached and sold. The case is no authority for the proposition that an auction is invalid for want of attachment, even though the sale proclamation correctly mentioned and described the property which is sold "
I entirely agree with their Lordships in the view taken in the above case. So the case cited by the learned Advocate for the petitioners does not very much help him in this case. The omission to serve writ of attachment has also been considered to be an irregularity is the case of Sheodhyan v. Bholanath, where Banerji and Aikman, JJ. held
"The absence of an attachment prior to the sale of immovable property in execution of a decree amounts to no more than a material irregularity, but is not sufficient, unless substantial injury is caused thereby, to vitiate the sale."
9. The question as to the effect of a sale being held contrary to legislative enactment has been dealt with at sufficient length by Mokherjee and Chotznet, JJ. in the case in Rajant Kanta Ghose and others v. Sk. Rahman Gazi and others, where their Lordships have observed :
"It was pointed out in the case of Asutosh Sikdar v. Beharilal Kirtunia I L R 35 Cal. 61, that a sale held contrary to legislative enactment is not necessarily a sale absolutely without jurisdic tion. It cannot be maintained on principle that because a sale has been held in contravention of a statutory provision, it must, irrespective of nature and purpose of the provisions, be deemed to be null and void. Reference may be made to live decisions of the Judicial Committee in illustration of this principle. The cases of Tasaddak Rasul Khan v. Ahmad Hussain 20 I A 176 where a sale was held in violation of the provisions of section 290, C. P. C., Gobinda Sal Roy v. Ram Janam Misser 20 IA 165 where a sale for arrears of revenue was held in contravention of the provisions of sections 5 and 17 of Act XI of 1859, and Malkarjan v. Narkari 27 I A 210 where a sale was held contrary to the provisions of section 248 of the Code amply show that there may be cases where the violation of the express provision of a statute may not nullify the proceedings. On the other hand, the case of Nusservanjee Pestonee v. Meer Mynoodeen 6 M I A 134 where ‑an arbitration proceeding was carried on contrary to the provisions of the Bombay Regulation VII of 1827, and Subramania Ayyar v. King Emperor 28 I A 258 where a trial was held in contravention of the rule of joinder of charges embodied in section 234 of the Criminal Procedure Code are instances where failure to comply with the provisions of a statute completely vitiated the proceedings. The only rule that may be adopted is, that when the provisions of statute have been contravened, if a question arises as to how far the proceed ings are affected by such contravention, the matter must be determined with regard to the stature, scope and object of the particular provision which has been violated. No hard and fast line can be drawn between a nullity and an Irregularity. But this much is clear that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation, where as a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void anal incapable of being validated."
10. In the case in Ishan Chandra Banikya v. Moomraj Khan the same principle of law affirmed. In that case a decree for enhanced rent was made on compromise between the parties, under the provisions of section 147‑A, Bengal Tenancy Act and the question was whether that could be assailed in a subsequent suit as being without jurisdiction on the ground that the procedure laid down it that section as to the recording of reasons by the Court for being satisfied that the terms of the compromise were such that if embodied in a contract they could be enforced under the Act and that the enhancement was fair and equitable and in accordance with the rules laid down in the Act for the guidance of Courts in increasing rents was not complied with. Their Lordships B. B. Ghose and Graham, JJ. in that case held
"Such a decree may be assailed in proper proceedings as erroneous but cannot be said to have been passed without jurisdiction and is valid and binding and the landlords are entitled to a decree for rent at the rate settled by the former decree."
At page 944 Graham, J. observed as follows :‑
"In short, jurisdiction or the existence of jurisdiction is, as it seems to me, a fact, and it cannot be said to be non‑existent because it has been a failure to comply with some direction or directions, as to the procedure which should be followed. Failure to comply with such directions cannot be held to deprive the Court of the jurisdiction which it possesses to make the decree."
Here the decree‑holder applied for execution of the decree under the provisions of Chapter XIV of the Bengal Tenancy Act and the mere fact that there was no combined issue of attachment cannot be said to have taken away the jurisdiction of the Court to hold the sale as it is only a question of procedure. At the utmost it is only an irregularity and nothing more.
11. The case of Malkarjan Bin Sidramappa Pasare v. Narhari Bin Shivappa and another, of course, does not very much help us for decision of the issue in the present case. I, therefore, bold that the contention raised by Mr. Asaduzzaman Khan for the petitioners that the sale is without jurisdiction, void and illegal on the round of omission of the issue of the writ of attachment cannot be accepted
12. The next contention urged by the learned Advocate for the petitioners is that there was no concise statement issued as against the petitioners. Now, from the records it appears that two of the petitioners Bama Sundari and Jogneswari received the letters containing the concise statement with thumb impressions on the acknowledgment receipts. The learned Advocate has contended that there is no evidence to prove that these were identical thumb impressions of those two petitioners. He has cited the case, in Ramamanemma v. Basavayya, where it has been held, "thumb impressions are not exempt from provisions of section 67 of the Indian Evidence Act Section 67 of the Evidence Act lays down :
"that if a document is alleged to be signed or to have bees written wholly or in part by any person, the signature or the hand‑writing of so much of the document as is alleged to be in that person's hand‑writing must be proved to be in his hand writing."
Jogneswari was not examined in this case. Bama Sundari was examined but she denied the receipt of any letter containing concise statement but she did not specifically deny the thumb impression in the acknowledgement receipt. Mr. Salam for the opposite‑party, in this connection has cited the case, in Rajani Sut radhar "and another v. Baikuntha Chandra Saha and another; which was a case of service of notice to quite under the Transfer of Property Act. A registered letter containing the receipt was addressed to the tenant which did not come back. But his Lord ship R. Mitter, J. held :
"A registered letter which is proved to have been correctly addressed and posted and which did not come back, must be presumed to have reached the addressee, although the latter's signature on the acknowledgment receipt may not be proved."
Here, in this ease there is a definite finding that two of the petitioners received the ackowldgment receipt with thumb- impressions. So far as the petitioner No. 3 Lal Mohan Nama is concerned, he did not come to the dock to say that he did not receive any notice although there is nothing on the record to show that notice was issued to him. The learned Subordinate Judge has held "it remains unchallenged that Bama Sundari Nama and Jagnesawari Nama received the concise statements issued upon them". So far as Sarala Sundari Nama is concerned, there was no case that she did not receive the notice. No case was made out before this Court that' she did not receive any notice. Jognes wari Nama also did not deny the service of notice. Henderson, J. in the case of Abdul Gafur v. Gura Mia and others laid down the law as follows :
"Failure to issue concise statement to the judgment‑debtor as required by section 163 (3) (o) of the Bengal Tenancy Act is an irregularity and as it prevents the judgment‑debtor from paying money into Court to avert the sale, it is the direct case of the property being sold at an inadequate sum and the sale is liable to be set aside under section 175 (3)."
I respectfully agree with the view taken by his lordship in the above case and to any view of the matter this was also nothing but an irregularity and not an illegality.…
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