Execution sale challenge failed where limitation was excluded, service was presumed, and later restoration did not revive the statutory bar.

Limitation for challenging an execution sale was saved by exclusion of time spent in a pending debt settlement proceeding, so the application was not barred. Alleged non-service of the concise statement did not vitiate the sale because posting by registered letter with an endorsement of refusal raised a presumption of due service, which was not rebutted, and actual notice also meant no substantial injury was shown. Restoration of the debt settlement proceeding did not retrospectively revive the statutory bar, because the sale occurred before notice reached the executing court and intervening acts were not rendered void. The sale and confirmation order were upheld.

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Issues: (i) Whether the application to set aside the execution sale and the confirmation order was within limitation; (ii) Whether non-service of the concise statement vitiated the sale for material irregularity and substantial injury; (iii) Whether the restoration of the debt settlement proceeding revived the statutory bar so as to invalidate the sale or the confirmation order.

Issue (i): Whether the application to set aside the execution sale and the confirmation order was within limitation.

Analysis: The application, so far as it proceeded under section 47 of the Civil Procedure Code, was within time. So far as it proceeded under section 174(5) of the Bengal Tenancy Act, the period beyond six months from the sale could be excluded under section 52 of the Bengal Agricultural Debtors Act because the application before the Debt Settlement Board concerned the same debt and remained pending for the relevant period. The exclusion of that period brought the application within time.

Conclusion: The application was not barred by limitation.

Issue (ii): Whether non-service of the concise statement vitiated the sale for material irregularity and substantial injury.

Analysis: Proof of posting a registered letter, coupled with its return bearing an endorsement of refusal, raised the statutory presumption of due service under the Bengal General Clauses Act and the Evidence Act. The presumption was not rebutted by any legal evidence. In any event, the appellant had actual knowledge of the impending sale from the notice under section 34 of the Bengal Agricultural Debtors Act, so no substantial injury from the alleged defect was shown.

Conclusion: The alleged irregularity in service was not established and no substantial injury was proved.

Issue (iii): Whether the restoration of the debt settlement proceeding revived the statutory bar so as to invalidate the sale or the confirmation order.

Analysis: The sale was held before the executing court received notice of the application under section 34, so neither section 34 nor section 35 invalidated the sale. After dismissal of the debt settlement application for default, the civil court was free to proceed until a fresh restoration was communicated. A later restoration did not operate retrospectively to make the court's intervening acts void or to keep the statutory bar alive during the period when the proceeding stood dismissed.

Conclusion: The sale and the confirmation order were not void under sections 34 or 35 of the Bengal Agricultural Debtors Act.

Final Conclusion: The appeal and the revision failed, and the execution sale and its confirmation were upheld.

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