P L D 1956 Dacca 35 (PLP)

CHOWDHURY, J.‑This rule was issued by this Court on an application by the mortgage decree‑holder auction‑purcha ser against the order of the Courts below setting aside the sale on an application by one of the mortgagor judgment‑debtors under Order XXI, rule 90 of the Code of Civil Procedure V of 1908). The rule is limited to grounds Nos. 3 and 4 of the petition which run as follows "

3. For that the Courts below acted illegally and without jurisdiction in setting aside the entire sale on the applica tion of one of the judgment‑debtors. "

4. For that the Courts below acted without jurisdiction in setting aside the sale on the finding that the provision of section 35, Bengal Money Lenders Act has not been comp lied with." Abhilas Mondal, the predecessor‑in‑interest of the oppo site parties Nos. 1 to 3 filed an application on the 11th October 1947, under Order XXI, rule 90 and section 47 of the Code of Civil Procedure for setting aside the sale held on the 21st April 1944, on the ground of fraud and fraudulent suppression of sale processes causing substantial injury to him. His case was that he was not aware of the sale till the l5th Aswin, 1354 B. S., as a result of the suppression of the sale processes and the property measuring about 70 bighas of land (21'37 acres) worth about Rs. 15,000 was sold at Rs. 1,369‑2‑0 only, to the serious prejudice of the opposite parties and caused serious injury to him. He further alleged that the decretal amount was Rs. 1,278‑1‑6 and in the execution petition the mortgaged land measuring 21'37 acres was valued at Rs. 1,200 only and the provision of section 35, Bengal Money Lenders Act was not complied with. Section 35 of the Bengal Money Lenders Act, provides that the proclamation of the intended sale of the property in execution of the decree passed in respect of a loan shall specify only so much of the property of the judgment‑debtor as the Court considers to be saleable at a price sufficient to satisfy the decree and the property so speci fied shall not be sold at a price which is less than the price specified at such a proclamation. The Court did not specify as to how much of the property should be sold at a price suffi cient to satisfy the decree. It constituted a material irregu larity within the meaning of Order XXI, rule 90 of the Code of Civil Procedure. The decree‑holder opposite party opposed the application contending inter alia, that the sale processes had been duly served and the price fetched at the auction sale was adequate and pleaded the bar of limitation. The trial Court allowed the application and set aside the sale holding that there was fraud and fraudulent suppression of processes which prevented the applicant from knowing about the sale and on account of this fraud and fraudulent suppres sion, the property worth about Rs. 15,000 was sold and pur chased by the decree‑holder at Rs. 1,369‑2‑0 causing substantial injury to the applicant and the applicant was entitled to the benefit of section 18 of the Limitation Act. On appeal, the order of the trial Court was affirmed by the learned District Judge, Khulna, holding that the property worth at least Rs. 7,000 was sold at Rs. 1,369‑2‑0 only and the price fetched at the sale was shockingly low causing sub stantial injury to ‑the judgment‑debtors. Against this deci sion, present rule is obtained by the decree‑holder auction purchaser. Mr. Birendra Nath Choudhury, the learned Advocate for the petitioner, in support of his first ground relied on the case of Manmatha Nath Mukherjee v. Jiaul Huq and another (55 C W N 196), and contends that entire sale cannot be set aside at the instance of some of the several judgment‑debtors particularly in view of the fact that an application under Order XXI, rule 90 at the instance of two other judgment‑debtors was dismissed for default previous to the present application. In the case reported in 55 C W N 196 relied on by Mr. Choudhury, it is held no doubt that generally a sale should be set aside or con firmed in its entirety but this proposition is subject to certain qualifications as for instance, the bar of limitation, res‑judicata etc. The learned judge in that case relied on the case of Amulya Krishna Bandopadhya v. Dilip Kumar Roy Chou dhury (41 C W N 224). In the last mentioned case, in view of the facts of that case, Guha and Bartley JJ. held that the setting aside of the entire sale would result in failure of justice and would operate to the prejudice of the purchaser at the sale in Execu tion of the decree. In that case the application under Order XXI, rule 90 of the Code of Civil Procedure, of two of the opposite parties was dismissed on merit. Question arose whether on the application by some of the other judgment debtors the entire sale could be set aside. Except the reason mentioned above, no other reason was given by their Lord ships in that case. So is the case reported in 55 C W N

196. At page 202 of the report in the last mentioned case Guha J, observed: "It is obvious, therefore, that there is some conflict of judicial opinion as regards the propriety or validity of setting aside a sale partially. To me it appears that generally a sale should be set aside or confirmed in its entirety but this propo sition is subject to certain qualifications, as for instance, the bar of limitation, res‑judicata, etc." At the same page of the report in the earlier portion of the judgment his Lordship observed : "So far as this Court is concerned, it is bound, however, by the decision in the case of Amulya Krishna Bandopadhya which is directly in point." I regret my inability to agree with the view taken in the cases reported in 41 C W N 224 and 55 C W N

196. Order XXI, rule 90 specifically lays down that the decree‑holder or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or conducting it. It does not say that the sale is to be set aside only so far as the applicant whose interests are affected by the sale. It contemplates setting aside of the entire sale. If we read as it was read in the case reported in 55 C W N 196 that generally a sale should be set aside or con firmed in its entirety but subject to certain qualifications, as for instance, the bar of limitation, res‑judicata, etc., we shall have to read something which is not in the rule. It cannot be contended that a sale is both bad and good ; if it is bad, it is bad in its entirety and if it is good it is good in its entirety. If we hold that a sale can be set aside in part, it will automatically lead us to hold that the sale can be split up in parts There is no provision for splitting up a sale in the Code of Civil Procedure. Some of the judgment‑debtors may not be successful in their attempt to have the sale set aside on account of their knowledge or otherwise of the sale but if it is defective in respect of some of the judgment‑debtors on account of fraud and fraudulent suppression of processes, the entire sale is affected by the fraud and fraudulent suppression of processes or material irregularity in conducting and publishing the sale and any one of the judgment‑debtors can get the sale set aside under the law. Further if we hold that the sale can be set aside in part under Order XXI, rule 90 of the Code of Civil Procedure, it will lead to numerous complications. In this view of the matter, I am unable to agree with the view of their Lordships of the Calcutta High Court in the case reported in 41 C W N 224 and the case reported in 55 C W N

196. In support of the view I have taken, reference may be made to the case of Ramesh Chandra Patranabis v. Birajasundari Gupta and others (32CWN519), where their Lordships Suhrawardy and Graham JJ. held that under Order XXI, rule 90 the entire sale could be set aside at the instance of one of several judgment‑debtors and Order XXI, rule 90 provides for setting aside a sale in its entirety and the rule did not con template the setting of a sale partially. Their Lordships have given reason for their views at the latter part of their judgment and relied on the Privy Council case of Khairajamal v. Daim (I L R 32 Cal. 296), and the Full Bench case of Raja Gopal Ayyar v. Ramanuja Chariar (I L R S47 Mad. 288 (F B)). In the case of Shila Pal and others v. The Comilla Banking Corporation Ltd. (49 C W N 158), Mukherjea and Sharpe, JJ., held at p. 160 of the report that a sale which was affected by such a defect could not be set aside in part and it was immaterial that the person who applied to set it‑aside, was interested only in a fractional share of the property sold. Their Lordships relied on an earlier decision of the same High Court in the case of Ramesh Chandra Patranabis v. Birajasundari Gupta and others. These cases reported in 32 C W N 519 and 49 C W N 158 were referred to by Guha J. in the case reported in 55 C W N 196 but the learned judge preferred to follow the decision reported in 41 C W N 224 saying that the case was directly in point. The facts of the case reported in 32 C W N 519 are also similar to the facts of the case reported in 55 C W N

196. Still Guha J. preferred to follow the decision reported in 41 C W N 224 in which their Lordships proceeded on the basis of equity and justice and not on any specific provision of law. In these circumstances I am unable to accept the first conten tion of Mr. Choudhury. As regards the second contention, certainly non‑compliance with the provision of section 35 of the Bengal Money Lenders. Act is an irregularity making the sale invalid and not void. The learned District judge though referred to the non compliance of that provision did not base his decision on that ground. The trial Court found that there was a fraud attract ing the provision of section 18 of the Limitation Act. The learned District judge affirmed that decision holding that the price fetched at the auction sale was so low as to shock the conscience of the Court and the property worth about Rs. 15,000 was sold at a gross under valuation of Rs. 1,369‑2‑0 on account of the fraud of the decree‑holder auction -purchaser. The result, therefore, is that this Rule is discharged with costs. K. M. A. Rule discharged.