Case: Amiya Prosad Sanyal Vs. Bank of Commerce Limited (in liquidation)

the name of the judgment debtor who was then dead. The Division Bench has therefore rightly held that no proper notice had been served on the legal representatives of the judgment debtor and the sale transactions between the parties could not be held invalid.13. The learned counsel for the respondents has also submitted that the Division Bench has also held that the Official Liquidator had also not taken any step to set aside the sale in respect of the said nine properties in favour of the said respondents. Accordingly, there was no occasion for the Court to interfere with such sale made in favour of the respondents Nos. 2 to 13.14. The learned counsel has submitted that after noticing the said fact, the Division Bench has held that unless the sale is set aside in appropriate proceedings by any party aggrieved by such sale, the Court cannot at that stage interfere with the said sale.15. The learned counsel has also submitted that in the said suit instituted by the Bank prayer for sale of certain shares stated to have been hypothecated with the plaintiff Bank was made. There was no allegation that the said nine properties had been mortgaged with the Bank. No mortgage decree in respect of the said nine properties had also been sought for in the suit. The said suit was decreed in 1954. The sale of the said nine properties in favour of the respondents Nos. 2 to 13 had taken place after about sixteen years from the date of decree between 6th May and 8th May, 1970. Even after another sixteen years namely in 1986, an attempt was made for the first time by the Official Liquidator to sell the said properties. Such sale, however, in respect of the said nine properties cannot be held because the respondents Nos. 2 to 13 had already obtained valid title to the said properties on the strength of registered conveyances executed between 6th and 8th May, 1970.16. The learned counsel for the respondents has also submitted that although the said respondents had validly obtained title in respect of the said nine properties even then, pursuant to the directions of the Court, the said respondents made additional payment of Rupees 84,000/- in favour of the decree holder. The learned counsel has also submitted that the total price of the properties had been fixed at Rupees 5,51,000/- but as the nine properties had already been transferred to the said respondents, the value of the remaining ten properties was fixed at Rs. 3,17,900/-.Such deduction in the value of the properties after excluding the value of the said nine properties clearly indicates that the appellants as auction purchasers had not paid anything for the said nine properties and there was no occasion for them to suffer any prejudice by the exclusion of the said nine properties. The learned counsel has, therefore, submitted that no interference against the impugned judgment is called for and the appeals should be dismissed. 17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had been sold. 18. The Division Bench has also not found as a fact that there had been any collusion between the purchaser of the said nine properties and the heirs and legal representatives of the deceased judgment debtor. In the aforesaid circumstances, auction sale of the said nine properties in execution of the said decree can not be held valid. The Division Bench of the High court has also indicated that although the said nine properties had been sold between May 6 and 8, 1970, the Official Liquidator had not taken any step to get the sale transactions set aside in any appropriate proceedings. In the aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. After giving careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sell certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sell the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased Judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the Judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the dates between 6th May and 8th May, 1970. The Receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased Judgment debtor between 6th May and 8th May 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the Judgment debtor in execution of the money decree on the dates when the nine properties had beenthe aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court.