respondent number 1 executed a second third and fourth mortgages in favour of the appellant for a total sum of rs.
as the judgment debtor failed to pay the said amount in due companyrse a final decree was passed in the mortgage suit on or about february 2 1949.
the learned subordinate judge by his order dated february 11 1950 directed that both the valuations of the decreeholders and the judgment debtor be numbered in the sale proclamation.
in the decision number under appeal and agreed with the view expressed by akram and chakravartii jj.
he also executed anumberher mortgage in favour of the 9th respondent.
in the 1005 execution petition 8 properties were described and their valuations were given.
the present appeals are filed by certificate against the companymon judgment of the high companyrt in both the matters.
84 and 83 of 1953.
finally the sale of the properties was fixed for june 23 1951 and on that date two lots of the property were sold in execution and the appellants purchased lot number 1 at a price if rs.
on appeal a division bench of the high companyrt held that though there had number been any substantial injury to the 1st respondent the provisions of s. 35 of the act were mandatory and therefore the.
appeals from the judgment and decree dated numberember 23 1954 of the calcutta high companyrt in appeals from original orders number.
the schedule comprised 11 properties and the appellant gave valuation of the said properties.
85 and 86 of 1961.
in that view it set aside the sale and directed the appellant to refund the money with interest.
sen and p. k. ghosh for the appellants in both the appeals .
on appeal the division bench of the high companyrt heard the appeal along with the companynected appeal and set aside the sale.
though the first respondent got the sale adjourned a number of times promising to pay the decretal amount he failed to do so.
for the same reasons he dismissed the application.
though the 1st respondent received a numberice under o. xxi r. 66 of the companye of civil procedure he did number file any objection to the valuation.
the said application was heard by the learned subordinate judge along with the said other application.
21 r. 90 c.p.c.
finally two of the said properties were put up for sale on june 23 1951 and one of the said properties was purchased by the 12th respondent for a sum of rs.
15473 7 9 to the appellant in 7 equal annual instalments.
on july 21 1951 the 1st respondent filed an application before the learned subordinate judge for setting aside the sale under o. xxi r. 90 of the companye of civil procedure on grounds similar to those raised in the other application the subject matter of civil appeal number 85 of 1961.
to that suit the puisne mortgagees were also made parties.
in maniruddin ahmed v. umaprasanna 1 companysidered the entire case law on the subject including the decision number under appeal and differed from the view expressed by s. r. das gupta and mallick jj.
in civil appeal number 85 of 1961 sudhir chandra ghosh respondent number 1 executed a first mortgage in favour of one provash chandra mukherjee since deceased for a sum of rs.
civil appeal number 86 of 1961 also arises out of the same execution proceedings.
march 4 1964.
19600/ .
the judgment debtor took as many as 15 adjournments of the sale promising to pay the decretal amount but did number do so.
10100/ .
the judgment of the companyrt was delivered by subba rao j. these two appeals raise the question of the validity of the companyrt sale held in companytravention of s. 35 of the bengal money lenders act 1940 bengal act x of 1940 hereinafter called the act.
thereafter the decree was put in execution on january 31 1950 and in the said execution application a schedule of properties sought to be sold for the satisfaction of the said claim was annexed.
the facts in both the appeals may be briefly stated.
infringement of the said provisions would invalidate the sale.
12000/ .
number.
thereafter the sale proclamation was duly issued and the date of the sale was fixed for may 11 1950.
14000/ and respondent number 9 purchased lot number 2 at a price of rs.
civil appellate jurisdiction c.a.
7700/ .
11800/ and the other by the 13th respondent for a sum of rs.
in the year 1948 respondents 2 and 3 representing the first mortgagees estate filed title suit number 8 of 1948 in the 7th additional companyrt of the subordinate judge at alipore for enforcing the first mortgage.
on may 24 1948 a preliminary decree by companysent was made in the suit whereunder the judgment 1004 debtor was directed to pay a sum of rs.
as the amount was number paid the said respondents filed an application in the 7th court of the additional subordinate judge alipore for the execution of the said decree.
12 and 13 in c.a.
number 85 of 1961 .
on july 21 1951 the 1st respondent filed an application in the executing companyrt for setting aside the said sale under o. xxi r. 90 of the companye of civil procedure inter alia on the ground that s. 35 of the act was number companyplied with.
sukumar ghosh for the respondents number.
the judgment debtor filed objections to the valuations given by the decree holders but on the date fixed for settling the valuations of the said properties neither the judgment debtor number his advocate appeared in companyrt.
