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Narayan Sadoba Halvai Vs. Umbar Adam Memon - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 958 of 1909
Judge
Reported in(1911)13BOMLR307
AppellantNarayan Sadoba Halvai
RespondentUmbar Adam Memon
Excerpt:
.....to raise attachment--attached property declared subject to lien--sale of property--auction purchaser--intervenor suing the purchaser for the amount of the lien.;g obtained a money-decree against h, and in execution attached some property. u intervened and applied to have the attachment raised on the ground that he was the owner of the property. the claim was investigated under sections 280 and 281 of the civil procedure code of 1882, and the court held that h was the owner of the property but u was entitled to a lien on the property to the extent of rs. 687-n-3. the property was sold; t a court sale subject to the lien and purchased by n. u then sued n to recover the amount of the lien. n contended that the miscellaneous order did not bind him; and..........the lower court has allowed the claim. but it is contended before us by the defendant, the auction-purchaser, that he is entitled to question the existence of the lien ; that the miscellaneous order does not bind him; and that he was not bound to bring a suit to set aside that order after the sale within a year from its date. it has been held by this court, in a series of cases, that under the circumstances mentioned above, the auction-purchaser cannot be regarded as a party to the miscellaneous order, being not a representative either of the judgment-debtor or of the judgment-creditor: see vasanji haribhai v. lallu akhu ilr (1885) 9 bom. 285 and vishvanath chardu naik v. subraya shivapa shetii ilr (1890) 15 bom. 290. unless, therefore, the plaintiff brings this case within the.....
Judgment:

N.G. Chandavarkar, J.

1. The facts which arise in this second appeal for the determination of the question of limitation argued before us are shortly these. One Govind Sadoba obtained a money decree against one Haroo Hussan. In execution of that money decree the property in dispute was attached by the judgment-credit of. The present respondent-plaintiff intervened and applied to have the attachment raised on the ground that he was owner of the property.

2. Upon investigation of the claim under Sections 280 and 281 of the Civil Procedure Code the Court held that the property belonged to the judgment-debtor, not to the present plaintiff. But it also held, that the intervener was entitled to a lien on the property. Accordingly the Court passed an order that the property should be attached and sold, subject to the lien of the intervener. The property was sold subject to the present plaintiif's lien, namely, Rs. 687-11-3, and the defendant purchased it at the Court sale.

3. The plaintiif has now brought the suit to recover the amount of lien which, he contends, has been established conclusively by the order passed in the miscellaneous proceeding. The lower Court has allowed the claim. But it is contended before us by the defendant, the auction-purchaser, that he is entitled to question the existence of the lien ; that the miscellaneous order does not bind him; and that he was not bound to bring a suit to set aside that order after the sale within a year from its date. It has been held by this Court, in a series of cases, that under the circumstances mentioned above, the auction-purchaser cannot be regarded as a party to the miscellaneous order, being not a representative either of the judgment-debtor or of the judgment-creditor: see Vasanji Haribhai v. Lallu Akhu ILR (1885) 9 Bom. 285 and Vishvanath Chardu Naik v. Subraya Shivapa Shetii ILR (1890) 15 Bom. 290. Unless, therefore, the plaintiff brings this case within the principle of the decisions in Yashvant Shenvi v. Vithoba Sheti ILR (1887) 12 Bom. 281 and Nemagauda v. Paresha ILR (1897) 22 Bom. 640, his suit must fail. But these two decisions cannot apply here, because there the auction-purchaser was also the attaching creditor, and, therefore, the order was one which bound the parties to it and the suit was brought by the party who was unsuccessful in the miscellaneous proceeding.

4. The second ground is that in the miscellaneous proceeding the plaintiff came in and sought to raise the attachment upon the ground that the property belonged to him. There was no question directly raised by him that he was entitled to a lien. The question of lien came in only incidentally, and, therefore, the order passed by the Subordinate Judge, that the property should be sold subject to the plaintiff's lien, cannot be treated as an order under Section 282. It must under the circumstances be regarded as one made under Section 287.

5. The lower appellate Court's decision on the preliminary point having erroneously disposed of the preliminary point arising in this case, we must reverse the decree and remand the appeal to that Court for a hearing on the merits.

6. Costs to be costs in the appeal.

Heaton, J.

7. I agree to this order. I notice that the District Judge has distinguished clearly between two different aspects of the case. The first was the question whether the auction-purchaser is bound by the order in the miscellaneous proceeding; and he held, I think quite rightly, that the auction purchaser was not bound; the second aspect of the case was whether the property sold was the equity of redemption and nothing else. The Judge held, in my opinion, wrongly that what was sold was the equity of redemption only.

8. Now if this were a finding of fact, we should be bound by it; but to my mind it is not a finding of fact. It is merely a determination of the legal effect of certain documents. There is no dispute as to the meaning of the words in the documents. They are the proclamation of sale and the certificate of sale, and they are undoubtedly to the effect that what is sold is the property, i. e. landed property, subject to a certain charge, the nature and amount of which are mentioned. It is not in terms a sale of the equity of redemption. Therefore, it seems to me, that the District Judge was wrong in deciding the case on the ground that the purchaser had bought nothing but the equity of redemption.

9. As to the first aspect of the case I will say a few words. The dispute arose between the decree-holder and a third person who objected to the sale of certain properties alleged to belong to the judgment-debtor. To that dispute the judgment-debtor himself was not made a party, in any sense of the word whatever. He had no notice of this dispute and he never intervened in it. The dispute was heard, in that summary manner, which is adopted in such proceedings. It was not tried with the thoroughness and with that care to secure that all persons interested are parties with which such a suit, for instance as a mortgage suit, is tried; the decision arrived at by the Court is a decision which not only binds the parties to the dispute, but, unless a suit to set it aside is brought within one year, it is final. But it seems to me, that it would be wrong on principle to hold that the decision arrived at binds any one whatever who is not a party to the dispute or one who derives interest from a party. Now the judgment-debtor was not a party to that dispute and he is not a person who has derived interest from either of the parties. It seems to me therefore to be contrary to first principles to say that the decision arrived at in that dispute has any legal effect whatever as regards the judgment-debtor, in the nature of res judicata, or for the purpose of preventing him or the auction-purchaser, if indeed the auction-purchaser can be supposed to be his representative, from re-opening that matter which was decided.


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