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High Court Of Calcutta
Pranab Kumar Chattopadhyay
ARATI DAW - Appellant
Versus
PRADIP ROY CHOWDHURY - Respondent
C. O. 2944 Of 2001
Decided On : 04/08/2003
ORDER 21 RULE 90 - SETTING ASIDE SALE - COURT'S INEXCUSABLE CARELESSNESS AND FRAUD ON COURT - SUO MOTU SETTING ASIDE OF SALE - LIMITATION ACT - NO APPLICATION.
Fact of the Case:
A three-storied building in a posh residential area in Kolkata was sold in a court auction for a paltry sum of Rs. 12,000/-. The decree holder, as the lone bidder, purchased the property at this price. The valuation of the property put by the decree holder in the sale proclamation was shockingly low. The sale proclamation was never served on the real owner of the property. Several other material irregularities in conducting the alleged court sale were also discovered.
Finding of the Court:
The court held that the sale was vitiated by fraud and material irregularities. The court found that the decree holder had committed fraud by putting a shockingly low valuation for the property in the sale proclamation. The court also found that the learned Judge of the Executing Court had blindly accepted the valuation supplied only by the decree holder in respect of the valuable house property and such blind acceptance of the valuation by the Court should be considered as gross carelessness on the part of the Court. The court further found that the sale was not even advertised in order to draw the notice of the actual buyer. It was surprising to note that a valuable house property comprising of a three-storied building in a very posh area in South Calcutta could not attract any bidder apart from the decree holder.
Issues: 1. Whether the sale was vitiated by fraud and material irregularities? 2. Whether the decree holder had committed fraud by putting a shockingly low valuation for the property in the sale proclamation? 3. Whether the learned Judge of the Executing Court had blindly accepted the valuation supplied only by the decree holder in respect of the valuable house property? 4. Whether the sale was not even advertised in order to draw the notice of the actual buyer?
Ratio Decidendi: 1. The court held that the sale was vitiated by fraud and material irregularities. 2. The court found that the decree holder had committed fraud by putting a shockingly low valuation for the property in the sale proclamation. 3. The court also found that the learned Judge of the Executing Court had blindly accepted the valuation supplied only by the decree holder in respect of the valuable house property and such blind acceptance of the valuation by the Court should be considered as gross carelessness on the part of the Court. 4. The court further found that the sale was not even advertised in order to draw the notice of the actual buyer.
Final Decision: The court set aside the sale of the building at 22/15, Manohar Pukur Road, Kolkata-700 029 by the Executing Court in Money Execution Case No. 34 of 1968.
( 1 ) THIS revisional application is directed against the judgment and order dated 16th July 2001 passed by the learned Additional District Judge, 13th Court, South 24-Parganas, Alipore in Miscellaneous Appeal No. 417 of 2000. The facts of the case disclose a shocking state of affairs amounting to fraud on Court resulting in the purported sale of a valuable three-storied building in a posh area of the city of Calcutta for a paltry sum of Rs. 12,000/- only to the decree holder who also happened to be the lone bidder.
( 2 ) THE learned Additional District Judge by the said impugned order dated 16th July, 2001 condoned the delay in filing the application and sent the matter back on remand to the trial Court with the specific direction to re-hear the case on merits and to dispose of the same as expeditiously as possible after giving opportunity of hearing to the respective parties.
( 3 ) CERTAIN relevant facts in relation to this proceeding are briefly summarised as hereunder:
( 4 ) THE mother of the respondent/opposite party Nos. 4 to 8, Surma Ghosh alias Dutta, since deceased, was the owner of the said house property who purchased the vacant land on 10th August 1949 from Ballygunge Estate Limited for a consideration of Rs. 22,264 and 8 annas and thereafter constructed a three-storied building thereon and started residing therein after letting out some portion of the said building to the tenants.
( 5 ) THE deceased father of the said respondent/opposite party Nos. 4 to 8 and the deceased husband of Late Surma Ghosh alias Dutta took loan of Rs. 9,500/- from one Apel Roy Chowdhury, predecessor-in-interest of respondent Nos. 1 to 3 herein. For recovery of the aforesaid loan amount said Apel Roy Chowdhury, since deceased, instituted a proceeding being Money Suit No. 6 of 1967 in the Third Court of Subordinate Judge at Alipore against the predecessor-in-interest of the respondent Nos. 4 to 8 herein and ultimately obtained an exparte decree for Rs. 11,115. 83 inclusive of interest.
( 6 ) ON 26th August 1968, the decree holder in the said Money Suit No. 6 of 1967 put the decree into execution for realisation of the decretal dues of Rs. 12,257. 91p by filing the Execution case which was registered as Money Execution Case No. 34 of 1968.
( 7 ) IT was contended on behalf of the respondent/opposite party Nos. 4 to 8 that their deceased mother who was the actual owner of the house in question, had no knowledge of the execution proceeding and she was never served with the process in connection with the execution. It has been specifically alleged that the service of all notices were suppressed by the decree holder.
( 8 ) INITIALLY, the sale of the aforesaid house property was fixed on 12th March, 1969 and as the sale proclamation and attachment was not served, it was re-issued on 12th March, 1969 and after filing of the requisites on 20th March, 1969 and the sale was fixed on 18th June, 1969. On 17th June, 1969, the judgment Debtor filed a petition for adjournment of the sale and prayed for two months time of the decretal dues.
( 9 ) THE sale proclamation was issued on 20th June, 1969 and on 12th July, 1969 the sale was held and with the leave of the Court the property was purchased by the decree holder at a sum of Rs. 12,257/- as the said bid of the decree holder for the aforesaid sum of Rs. 12,257/- was accepted by the Executive Court. On 14th August, 1969 the sale was confirmed by the learned Judge of the Executing Court and on 30th December 1969 the sale certificate was issued.
( 10 ) UNDISPUTEDLY the deceased father of the respondent Nos. 4 to 8 herein took loan of Rs. 9,500/- and mother was not concerned in any event in connection to the said loan although the three-storied building in Lansdown area in South Calcutta, owned by the said deceased mother of the respondent Nos. 4 to 8 was sold in auction in execution of an ex-parte decree for a sum of Rs. 12,000/- and odd.
( 11 ) ALTHOUGH the deceased mother
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