1948 (2) TMI 18 - HC - Indian Laws

Appellant's Claims Dismissed Due to Limitation Bar | Execution Sale Validated | Costs Awarded

Nirmala Bala Debi Versus Provat Kumar Basu

The appeal and application for revision were dismissed as the appellant's claims were found to be barred by limitation. The courts determined that no ... - Issues Involved:1. Validity of the execution sale.2. Alleged suppression of processes and grossly inadequate sale price.3. Validity of the confirmation order post-restoration of an application under the Bengal Agricultural Debtors Act.4. Limitation period for filing the application to set aside the sale.5. Applicability of Section 34 and Section 35 of the Bengal Agricultural Debtors Act.6. Whether the application for setting aside the sale was barred by limitation.7. Whether a second appeal lies from an order refusing to set aside a sale under Section 174(3) of the Bengal Tenancy Act.Issue-wise Detailed Analysis:1. Validity of the Execution Sale:The appeal challenges the validity of an execution sale conducted on January 8, 1943, where the property was sold to the respondent for Rs. 424-10-3. The appellant contended that the sale processes were suppressed and the property was sold at a grossly inadequate price. However, the trial court found that all processes had been duly served and dismissed the application as barred by limitation. The appellate court affirmed this decision, finding no material irregularity or fraud affecting the sale.2. Alleged Suppression of Processes and Grossly Inadequate Sale Price:The appellant argued that the sale should be set aside due to suppression of processes and the property being sold for an inadequate price. The trial court and the appellate court both found that the sale proclamation and concise statement were duly served. The appellate court noted that no evidence was provided regarding the value of the land at the time of the sale, and the low price was not caused by any fraud or irregularity. Therefore, the appellant's allegations were unsubstantiated.3. Validity of the Confirmation Order Post-Restoration of Application Under the Bengal Agricultural Debtors Act:The appellant contended that the confirmation order was void because the restoration of the application under the Bengal Agricultural Debtors Act revived the notice under Section 34 with retrospective effect. The trial court and appellate court found that the application before the Debt Settlement Board was dismissed on June 11, 1944, and the sale was confirmed on July 28, 1944. The restoration of the application on October 8, 1944, did not affect the validity of the confirmation order as no fresh notice under Section 34 was issued to the executing court.4. Limitation Period for Filing the Application to Set Aside the Sale:The appellant's application under Section 174(5) of the Bengal Tenancy Act and Sections 47 and 151 of the Civil Procedure Code was filed on December 8, 1944, more than six months after the sale. The trial court and appellate court held that the application was barred by limitation. The appellant could not invoke Section 18 of the Limitation Act as there was no fraud on the respondent's part. The courts also found that Section 52 of the Bengal Agricultural Debtors Act did not apply as the appellant was not debarred from making the application during the pendency of her case before the Debt Settlement Board.5. Applicability of Section 34 and Section 35 of the Bengal Agricultural Debtors Act:The appellant argued that the sale and confirmation order contravened Sections 34 and 35 of the Bengal Agricultural Debtors Act. The appellate court found that the sale was held before the application under the Act was made, and the notice under Section 34 reached the executing court only after the sale. Therefore, the sale was not affected by either section. The restoration of the application did not revive the notice under Section 34 with retrospective effect, and the confirmation order was valid.6. Whether the Application for Setting Aside the Sale Was Barred by Limitation:The appellate court held that the appellant's application under Section 47 of the Civil Procedure Code was within the three-year limitation period. However, the application under Section 174(3) of the Bengal Tenancy Act was prima facie out of time. The appellant could not invoke Section 18 of the Limitation Act, and the exclusion of time under Section 52 of the Bengal Agricultural Debtors Act was not applicable. Therefore, the application was barred by limitation.7. Whether a Second Appeal Lies from an Order Refusing to Set Aside a Sale Under Section 174(3) of the Bengal Tenancy Act:The appellate court noted that no second appeal lies from an order refusing to set aside a sale under Section 174(3) of the Bengal Tenancy Act. However, the appellant's application also impugned the confirmation order under Section 47 of the Civil Procedure Code, which raised a question relating to the execution of the decree. As the order passed thereon would operate as a decree, a second appeal was competent.Conclusion:The appeal and application for revision were both dismissed. The appellant's application was barred by limitation, and no material irregularity or fraud was proved in the execution sale. The confirmation order was valid, and neither Section 34 nor Section 35 of the Bengal Agricultural Debtors Act affected its validity. The respondent was awarded costs for the appeal, but no order for costs was made for the application for revision. Leave to appeal under clause 15 of the Letters Patent was refused.