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Hazarimal Fakirchand Vs. Namdev Rakhmaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Reference No. 6 of 1907
Judge
Reported in(1908)10BOMLR296
AppellantHazarimal Fakirchand
RespondentNamdev Rakhmaji
Excerpt:
.....requires the permission of the court to enable the holder of a decree to bid for property. if he gets that permission and gets it without qualification, then the amount duo on the mortgage may, if he so desires, be set off. but it may be one of the terms on which permission to bid is granted that there should not be this right of set off in such a case, no set off can be allowed. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent.....lawrence jenkins, c.j.1. no reference in this case lies, because no order can be made under the second paragraph of section 294 of the code of civil procedure. that section is perfectly clear. the first paragraph of that section requires the permission of the court to enable the holder of a decree to bid for property. if he gets that permission and gets it without qualification, then the amount due on the mortgage may, if he so desires, be set off. but it may be one of the terms on which permission to bid is granted that there should not be this right of set off. that seems to be the case here. it is clear then that the subordinate judge has no power to direct a set-off.2. we are obliged to the pleaders who have assisted us with their arguments in this case.
Judgment:

Lawrence Jenkins, C.J.

1. No reference in this case lies, because no order can be made under the second paragraph of Section 294 of the Code of Civil Procedure. That section is perfectly clear. The first paragraph of that section requires the permission of the Court to enable the holder of a decree to bid for property. If he gets that permission and gets it without qualification, then the amount due on the mortgage may, if he so desires, be set off. But it may be one of the terms on which permission to bid is granted that there should not be this right of set off. That seems to be the case here. It is clear then that the Subordinate Judge has no power to direct a set-off.

2. We are obliged to the pleaders who have assisted us with their arguments in this case.


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