Case: Gopal Krishna Das Vs. Sailendra Nath Biswas &amp; Anr

the decree-holder in whose favour the charge was created had reiterated again and again that she was willing to waive the charge. Hidayatullah J. who decided the case further observes in his judgment that on a comparison of the two sale proclamations he found that the existence of the charge was not mentioned in either. Naturally, the deficiency in price could not be attributed to the existence of the charge.16. In. Nelluri Brahmaiah v. Mohd. Sheik Mohiddin, (1964) 1 Andh LT 321 the auction purchaser disputed his liability for the deficiency on the ground that the judgment debtor had no saleable interest in the property. This contention was based on the circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem. There was no dispute about the boundaries, about the survey number or the area and it was not suggested that there was any other property of the particular description in Borrampalem The High Court of Andhra Pradesh held that in these circumstances the property could be easily identified that the location of the property put to sale was known to everyone concerned and therefore it was difficult to posit that the judgment-debtor had no saleable interest in the property.17. The decisions in Baijnath Sahai v. Moheep Narain Singh, (1889) ILR 16 Cal. 535 and in Gangadas Dayabhai v. Bai Surai, (1912) ILR 36 Bom 329 are more to the point. These cases arose under Section 293 of the Code of 1882 corresponding to order XXI. Rule 71, of the Code of 1908. In the Calcutta case, at the first sale no encumbrance upon the properties sold was notified. In the re-sale two encumbrances were notified. The second sale was held because the auction purchaser had committed a default in paying the balance of the purchase price in the first sale. The price fetched on the second sale resulted in a deficiency for which the auction purchaser was sought to be made liable. Apart from the circumstance that the decree-holder was himself to blame for not mentioning the encumbrances in the first proclamation and was therefore attempting to obtain an advantage of his own wrong, the Calcutta High Court expressed the legal position correctly by saying that "the re-sale contemplated by Section 293 of the Code of Civil Procedure must be a sale of the same property that was first sold, and under the same description and any substantial difference of description at the sale and the re-sale in any of the matters required to be specified by Section 287 to enable intending purchasers to judge of the value of the property should disentitle the decree-holder to recover the deficiency of price under Section 293." In the Bombay Case the errors in the two proclamations were so confusing that the deficiency in the price could not, it was held, be attributed to the default of the purchaser. The description in the second proclamation being materially different from that in the first, the resale was not of the same property and the auction purchaser, though he had defaulted in paying the balance of the purchase-price was absolved from making good the deficiency.18. It was contended that Pashupati Nath Biswas, the auction purchaser, being in possession of a part of the property must be deemed to have been aware of the lease and the sub-lease and therefore he is estopped from relying upon the same as having led to the deficiency in price. No estoppel can arise against the auction purchaser on the question whether the deficiency in price can be recovered from him. The question which arises under Order XXI, Rule 71 is whether the deficiency can be attributed to the default of the auction purchaser or whether it can be reasonably attributed to any other supervening circumstance. This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time. The Third clause of Rule 7 Provides: "Where the proceeds of the resale are less than the price bid by such defaulting purchaser, the difference shall be leviable from him under the rules contained in O.XXI of the Code for the execution of a decree for money." The Fifth clause of Rule 7 also provides that the sale is made under and subject to all other provisions contained in the Code of Civil Procedure relating to sales in execution of decrees. Order XXI, Rule 71 of the Code would therefore apply.20. It was finally contended on behalf of the appellant that the appeal flied by the auction purchaser from the judgment of the single judge to the Division Bench of the High Court was barred by limitation. We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail.

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

Explanation:
0[ds]9. It is clear on a careful reading of Rule 71 that its application is limited to cases in which the deficiency of price has occurred by reason of the auction purchasers default. Property once put to sale in execution proceedings may have to be resold for reasons which may or may not be connected with the default of the auction purchaser. A re-sale consequent on the failure of the auction purchaser to deposit 25% of the purchase price immediately after he is declared to be the purchaser of the property or a re-sale consequent upon his failure to deposit the balance of the purchase price within 15 days of the sale are instances when the resale is occasioned by the default of the auction purchaser. On the other hand, re-sale consequent upon the setting aside of the sale on the ground of material irregularity in publishing or conducting the sale as provided in Order XXI, Rule 90, may not be attributable to the default of the purchaser. The provisions of Order XXl, Rule 71, come into play only if the property is required to be re-sold on account of the default of the auction purchaser. If the re-sale is not due to the auction purchasers default there can be no question of mulcting him with the deficiency in the price realised in there-sale may have to be held because the auction purchaser has committed default in paying the deposit of 25% under Order XXI, R. 84, or because of his default in paying the full price within 15 days of the sale as required by Rule 85. And yet the deficiency of price realised in the re-sale may not bedisclosure of that encumbrance in the sale proclamation accompanying the re-sale must, on normal commercial considerations, have a direct impact on the price of the property put to sale. In such a case the deficiency of price realised in the re-sale will be attributable not necessarily to the default of the auction purchaser but to circumstances extraneous to his default. Order XXI, Rule 71, concerns itself not with that class of cases but with those in which the deficiency of price realised in the resale is attributable to the default of the auction purchaser.It is unnecessary to enter into refinements arising out of the West Bengal Act but even the sub-tenants would appear to enjoy thereunder a certain amount of immunity from eviction.Order XXI, Rule 71 is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the auction purchaser. The officer or other person holding the sale has to certify to the Court the deficiency of price which on the re-sale has happened by reason of the purchasers default and all expenses attending the re-sale. Upon such certification the amount becomes recoverable from the defaulting purchaser at the instance of the decree-holder or the judgment- debtor, "under the provisions relating to the execution of a decree for the payment of money". The Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible to the purchaser who is alleged to have defaulted to challenge the correctness of the certificate in all its particulars. But the object of certification, as evidenced even more clearly by the provision that the proceeding to recover the amount will be governed by provisions relating to the execution of a money-decree, is to eschew an elaborate inquiry into the competing causes culminating in the deficiency of price. This object can be achieved only if the property successively put to sale is in material respects identical, that is to say, if the right, title and interest of the judgement debtor is put to sale under substantially the same description. If that happens it is easy to predicate that the deficiency of price has resulted on account of the purchasers default. But if, as here, what was shown as unencumbered in the previous proclamation is expressly described in the later proclamation as being subject to an encumbrance which, on a reasonable assessment, is calculated to affect the market value of the property the proceeding ceases to be a simple enough matter like the execution of a money-decree and assumes the form of a contentious claim open to diverse defences as in a substantive suit. The speedy remedy intended to be provided by Order XXI, Rule 71 will lose its meaning and purpose if the executing court seized of the claim against the alleged defaulting purchaser has to embark upon a comparative evaluation of the causes that led to the deficiency in the price. Such meat is not for the executing court.14. Counsel for the appellant relied on certain decisions to fasten liability on the auction purchaser but those decisions will notWe are unable to appreciate the relevance of the maxim caveat emptor on a question like the one before us. The auction purchaser is not attempting to avoid the sale. Far from it, he adheres to his purchase but disputes his liability for the deficiency. There is no question of any failure on his part to take due care at the time of the first sale because that sale was held in 1954 whereas the encumbrance referred to in the second proclamation was stated to have been created in 1955.This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time.We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail.