Patna High Court
Musammat Sohagbati vs Sourendra Mohan Singh And Ors. on 26 February, 1918
Equivalent citations: 44IND. CAS.661, AIR 1918 PATNA 415
JUDGMENT
1. We are asked in revision to consider the following judgment: "This is an appeal against the decision of the Munsif of Banka setting aside a sale held in execution of a decree. The judgment of. the learned Munsif deals also with another application to set aside the decree. This tends to cause confusion and should not have been done. The applicant before him had only a share in the land sold and her relations contested the suit and appeared in the execution proceedings. This has not been noticed by the learned Munsif who has dealt with the case in a perfunctory manner. The auction-purchaser should have been summoned and the sale should not have been set. aside in his absence. He has appeared in, this Court and objected to the proceedings below, and rightly so. There is an order by the learned Munsif that the execution record should be sent for, but strange to say these have not been produced and the case has been dealt with without them, a most unsatisfactory proceeding The question whether the application was barred by limitation has not been considered at all. This was necessary, as unless the provisions of Section 18 of the limitation Act were applicable the application is barred. To talk of the fraud of the decree-holder without specifying it is to beg the question at issue. The error in the plaint in describing the applicant as a widow cannot be held to be a material irregularity justifying; the setting aside of the sale. Nor because the service of sale-proclamation and attachment was not proved can fraud be declared. The learned Munsif should certainly have inspected the execution record and examined the serving peon. The latter is an officer of his Court and the -reputation of the Court is at stake if the peon is guilty of misconduct. I wish this view were borne in mind by judicial officers. It is impossible to support the findings of the Munsif. The application should have been dismissed as being barred. This appeal is allowed and the order of the lower Court set aside with costs and Pleader's fee Rs. 8."
2. We would suggest to the learned Judge that a Superior Courts when upbraiding a Subordinate Court for perfunctoriness, should be particularly careful not to lay itself open to the same charge.
3. Two applications had been made in the Court of the Munsif, one for the setting aside of a decree obtained ex parte on the ground that no summons had been served, the other that the sale held in execution of that decree be set aside on the ground of material irregularities in the conduct of the sale. The issues raised on these two applications were tried together by consent of parties. The learned Judge says that this should not have been done because it tends to cause confusion. Why it should cause any confusion at all we cannot see. The whole proceedings were closely interwoven. If the decree was obtained by fraud, the probability that the sale was fraudulently conducted was enhanced. If it was honestly obtained,: the probability that the sale was honestly proclaimed was also enhanced. The learned Munsif found on the evidence that the summons in the suit had not been served on the applicant and that the sale-proclamation had been fraudulently suppressed. He, therefore, set aside both the decree and the sale. The decree-holder did not appeal against the order setting aside the decree and the original suit is, we understand, row being re-tried. The auction-purchaser did not appeal against the order setting aside the sale. The decree* holder did appeal. The learned Judge says that the auction-purchaser should have been summoned and the sale should not have been set aside in his absence. The learned Munsif had been at pains to record that a notice had been served on the auction-purchaser and that the auction-purchaser had been carefully kept out of Court at the instance of the decree-holder, with whom he was in collusion. The whole judgment of the learned Judge indicates that he is of opinion that when a Court-sale is challenged, it is the business of the Court to collect materials upon which the sale may be supported for the sake of the reputation of the Court. This we consider a view unfair to those who contend that a sale has been improperly conducted. There is a presumption under Section 114 of the Evidence Act that an official act has been regularly performed, but when an applicant before the Court is attempting to rebut that presumption it is not for the Court itself to give assistance to the other side, or to deal with the matter otherwise than impartially. The real issue in the case was: Were the sale-proclamations fraudulently suppressed? The learned Munsif found that they were. If that is correct the sale was fraudulently held, and fraudulently concealed from the applicant and limitation saved by Section 18. The issue has not been touched by the learned Judge. All that he says is that fraud cannot be declared merely because the service of the sale-proclamation has not been proved and that it is impossible to support the findings of the Munsif. We are of opinion not only that the judgment is not a judgment in accordance with law, but also that it is no judgment at all. It is merely an indignant protest against the setting aside of a sale held by officers subordinate to the Judge. The learned Judge had no jurisdiction to reverse the order of the lower Court without writing a judgment in accordance with law. We, therefore, set aside the order made, and direct that the appeal be re heard. In view of the attitude of the learned Judge towards the respondent's case we direct that it be re-heard by the District Judge of Monghyr.