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Nagabhatta Timmanbhatta Boppanhalli Vs. Nagappa Subbaya Havik - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 538 of 1921
Judge
Reported inAIR1923Bom62; (1922)24BOMLR423; 67Ind.Cas.857
AppellantNagabhatta Timmanbhatta Boppanhalli
RespondentNagappa Subbaya Havik
DispositionAppeal dismissed
Excerpt:
.....1908), articles 12, 97-decree-sale in execution-property outside the suit included by mistake in decree-sale of such property-suit to recover value of such property such property-dekkhan agriculturists' relief act (xvii of 1879), section 15b.;the plaintiff owning eight properties, mortgaged seven of them to defendant no. 1. in a suit to redeem the mortgage, the plaintiff impleaded by mistake the eighth property which was not mortgaged. the eighth property was accordingly included in the decree; and at a court sale held in execution of the decree, the eighth property was sold along with the mortgaged property to defendant no. 2 in 1916. the plaintiff having sued in 1918 to recover possession of the property from defendant no. 2 :-;(1) that the suit being one to recover from defendant..........mortgage, but by mistake in describing the property mortgaged to venkata bhatta, she included the eighth property, which was only subject to the second mortgage. in the redemption suit a decree was passed that the plaintiff should pay to rudrappa, the transferee from venkata bhatta, who had been made a party, the amount due under the first mortgage and costs by annual instalments, with liberty to bring the mortgaged property to sale in default. in the decree was included the eighth property, which as a matter of fact was not mortgaged originally to venkata bhatta. as the plaintiff did not pay her instalments, the first defendant (her husband rudrappa having died) took out execution and brought all the property to sale. at the court sale the second defendant was the purchaser.2. this is.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to recover from the second defendant the price of the materials of the house mentioned in the plaint, and also to recover possession of the house site and Hittal etc., appertaining thereto, the said properties having been purchased by defendant No. 2 at a Court sale held at the instance of defendant No. 1 in Darkhast No. 295 of 1914. The suit was decreed in the trial Court, but was dismissed in appeal. The facts, as set out by the learned District Judge, show that one Ramayya, the husband of the plaintiff, owned eight properties. He mortgaged seven of them to one Venkata Bhatta, and four years later he mortgaged all the eight properties to one Tammanna Bhatta. In 1910, the plaintiff filed a suit to redeem, this latter mortgage, and in her plaint she recited the fact of the former mortgage, but by mistake in describing the property mortgaged to Venkata Bhatta, she included the eighth property, which was only subject to the second mortgage. In the redemption suit a decree was passed that the plaintiff should pay to Rudrappa, the transferee from Venkata Bhatta, who had been made a party, the amount due under the first mortgage and costs by annual instalments, with liberty to bring the mortgaged property to sale in default. In the decree was included the eighth property, which as a matter of fact was not mortgaged originally to Venkata Bhatta. As the plaintiff did not pay her instalments, the first defendant (her husband Rudrappa having died) took out execution and brought all the property to sale. At the Court sale the second defendant was the purchaser.

2. This is not a suit to set aside that sale, but a suit to recover from the purchaser what he had purchased at the Court sale, and it is difficult to see how such a suit could lie until the Court sale is set aside, unless it could be considered as a nullity. Now it was entirely the fault of the plaintiff that she allowed the decree to be passed, because she must have been aware that the eighth property was entered in the decree for redemption which she obtained with regard to the first mortgage, and she has allowed the Court to sell the eighth property in execution of that decree. So that on the question of mistake, it is perfectly clear that the plaintiff was alone responsible for the eighth property having been sold. It is difficult then to see how she could say that the sale was a nullity. If necessary it would have to be held that the plaintiff was not even entitled to take such a plea.

3. What is the proper view in such a case, when objections are raised to a Court sale, was clearly laid down in Malkarjun v. Narhari I.L.R. (1900) Bom. 337; 2 Bom. L.R. 927. In that case the Court issued a notice to the wrong party, and not to the party against whom execution was applied for. It was then argued that the Court had no jurisdiction to sell the property, but the Privy Council at page 347 held that-

[Although the Court made a mistake], a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if he knows the fact; and that if he is to be held bound to Inquire into the accuracy of the Court's conduct of its own business no purchaser at a Court-sale would be safe. Strangers to a suit are justified in believing that the Court has done that which by the directions of the Code it ought to do.

4. Then at p. 352 their Lordships say :

The Limitation Act protects bona fide purchasers at judicial sales by providing a short limit of time within which suits may be brought to set them aside. If the protection is to be confined to suits which seek no other relief than a declaration that the sale ought to be set aside, and is to vanish directly some other relief consequential on the annulment of the sale is sought, the protection is exceedingly small.

5. Obviously then the plaintiff being perfectly well aware of the facts, being aware that the Court had sold the property which was not contained in Venkata Bhatta's mortgage, had thirty days from the date of the sale to apply to have the sale set aside.

6. There is no question of fraud in this case, and therefore, Article 95 of the Indian Limitation Act cannot possibly apply. It has been argued that the case comes under Article 96 on the ground that the plaintiff is seeking for relief on the ground of mistake. But although that Article might apply to the plaintiff's suit as originally framed it cannot apply to this suit as it ought to have been framed seeing that the Court sale has to be set aside, and cannot be considered as a nullity. Therefore the case is governed by Article 12 of the First Schedule of the Indian Limitation Act. The appeal, therefore, must be dismissed with costs.


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