JUDGEMENT
Chandrachud, J. -
(1.)Premises No. 4-A. Chowringhee Road, Calcutta, belonged to the appellant Gopal Krishna Das and four others, each having an undivided one-fifth share therein. In 1951, one Ganga Prosad Gupta obtained two money-decrees against the appellant and another person in the total sum of Rs. 12,378. In execution of these decrees, the undivided one-fifth share of the appellant was put to sale on June 16, 1954 and was purchased by Pashupati Nath Biswas, the father of the first respondent, for Rs. 77,040. Pashupati Nath Biswas deposited Rs. 19,260 in the Court, being 25% of the purchase price and later he deposited a further sum of Rs. 15,000. He, however, failed to pay the balance of the purchase price whereupon the appellant made an application that the property be put to a fresh sale. Accordingly, the property was put to sale on March 20, 1957 and once again Pashupati Nath Biswas was the highest bidder. But whereas in the first sale he had offered a bid of Rs. 77,040 this time the sale was knocked down in his favour for a paltry sum of Rs. 700. The second sale was confirmed on May 29, 1957.
(2.)In the meanwhile, on May 16, 1957 the Sheriff certified under Order XXI, Rule 71 of the Code of Civil Procedure that the deficiency in the price realised in the second sale due to the default of the auction purchaser, after giving him credit in the sum of Rs. 15,000 paid by him in the first sale, amounted to Rs. 61,340 apart from the cost and expenses of the sales.
(3.)On June 28, 1957 the appellant made an application under Order XXI, Rule 71 C.P.C. for recovering the deficiency from Pashupati Nath Biswas. A learned single Judge of the Calcutta High Court allowed that application and directed by an order dated August 19, 1958 that Pashupati Nath Biswas do pay to the appellant a sum of Rs. 42,080 with interest at 6% per annum. This order was challenged by Pashupati Nath Biswas in Appeal No. 10 of 1959.
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