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Anandrav Bapuji Vs. Shekh Baba and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom562
AppellantAnandrav Bapuji
RespondentShekh Baba and ors.
Excerpt:
.....admissions. - ; but on the fifth day he failed to make good the full amount of purchase-money, and the property was, consequently, again put up for sale, and purchased for rs. the judgment-creditor has nothing to do with the selection of a purchaser at an auction-sale, and we fail to see on what principle he can be compelled, when he has lent his money to a man of his own choosing, to accept as debtor in his place a person of whom he knows nothing, and who is worth nothing......the ground that the judgment-debtors were entitled to credit for the full amount bid at the first auction-sale, that their debt was consequently extinguished, and that the judgment-creditor's only remedy was against the defaulting purchaser. 3. a decision of the high court at calcutta (joobraj singh v. gour buksh lal 7 cal. w.r. civ. rul. 110 certainly supports the view taken by the district judge. in that case the court said: 'the judgment-debtor is entitled to credit for the full amount bid for the property at the time of the first sale, and if he pay up any balance due to the decree-holder in excess of the sum so bid, he must be considered as having liquidated his debt; and cannot be held responsible for any further sum. the difference between the first and second sale must be.....
Judgment:

Melvill, J.

1. This is an application to set aside an order of the District Court of Khandesh, by which the applicant, a judgment-creditor, is debarred from proceeding further against the property of the judgment-debtors.

2. The applicant obtained a decree for Rs. 343-7-11 against Shekh Baba and others, under which certain immoveable property was put up for sale. One Baksu bid Rs. 350 for the property, and made the usual deposit of 25 per cent.; but on the fifth day he failed to make good the full amount of purchase-money, and the property was, consequently, again put up for sale, and purchased for Rs. 151. The judgment-creditor made an application to the Subordinate Judge, in which he stated that Baksu had been acting in collusion with the judgment-debtors, and without any real intention of purchasing; that he was a man without means, from whom nothing could be recovered; and he, therefore, asked that, instead of proceeding against Baksu, he might be allowed to attach other property of the judgment-debtors in satisfaction of the balance still due under his decree. This application was granted by the Subordinate Judge; but on appeal the District Judge reversed his order, on the ground that the judgment-debtors were entitled to credit for the full amount bid at the first auction-sale, that their debt was consequently extinguished, and that the judgment-creditor's only remedy was against the defaulting purchaser.

3. A decision of the High Court at Calcutta (Joobraj Singh v. Gour Buksh Lal 7 Cal. W.R. Civ. Rul. 110 certainly supports the view taken by the District Judge. In that case the Court said: 'The judgment-debtor is entitled to credit for the full amount bid for the property at the time of the first sale, and if he pay up any balance due to the decree-holder in excess of the sum so bid, he must be considered as having liquidated his debt; and cannot be held responsible for any further sum. The difference between the first and second sale must be realized, not from the judgment-debtor, but, as provided by Section 254, from the defaulting auction-purchaser.'

4. But we regret that we feel unable to concur in this view. We can see no reason why a mere bid at an auction-sale should be held to have the same effect in discharging the judgment-debtor as the payment of the debt. If such were the effect, it is obvious that such fraud as is alleged in the present case would be very common. The judgment-debtor would only have to put forward a man of straw, who would bid the full amount of the debt, deposit 25 per cent., and then make default, and the judgment-debtor would thus get rid of his liability by paying 4 annas in the rupee. The judgment-creditor has nothing to do with the selection of a purchaser at an auction-sale, and we fail to see on what principle he can be compelled, when he has lent his money to a man of his own choosing, to accept as debtor in his place a person of whom he knows nothing, and who is worth nothing.

5. We think that the applicant in this case was not bound to proceed against the defaulting purchaser, and that he is entitled to recover the balance of his debt from his judgment-debtors, who may, perhaps, have their remedy against the defaulting purchaser. We, therefore, reverse the order of the District Judge, and restore that of the Subordinate Judge, with costs on the respondents throughout.


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