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Bala Kadar Vs. Gulam Mohidin - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom424
AppellantBala Kadar
RespondentGulam Mohidin
Excerpt:
code of civil procedure (act x of 1877), section 313 - judgment-debtor--representative--sale of immovable property--setting aside of sale. - .....an order to set aside a sale under section 313, to see that notice has been given to the judgment-debtor or his representative. mr. wagle contends that the representative not being specified, notice to the representative is needless after the death of the judgment-debtor. but though 'judgment-debtor' is not so defined as to include a representative, yet the reason of the thing here requires that a representative should have the same opportunity of guarding his interests as the judgment-debtor himself,. and we have no doubt that this was the intention.2. mr. shivshankar urges that a representative cannot be called forward now when more than sixty days have elapsed from the sale; but section 313 does not prescribe that the notice is to be served before the application, and schedule ii,.....
Judgment:

West, J.

1. It is imperative on a Court, before making an order to set aside a sale under Section 313, to see that notice has been given to the judgment-debtor or his representative. Mr. Wagle contends that the representative not being specified, notice to the representative is needless after the death of the judgment-debtor. But though 'judgment-debtor' is not so defined as to include a representative, yet the reason of the thing here requires that a representative should have the same opportunity of guarding his interests as the judgment-debtor himself,. and we have no doubt that this was the intention.

2. Mr. Shivshankar urges that a representative cannot be called forward now when more than sixty days have elapsed from the sale; but Section 313 does not prescribe that the notice is to be served before the application, and Schedule II, Article 172 of, Act XV of 1877 only requires that the application shall be made, not that the notice shall be served, within sixty days from the sale.

3. We must set aside the proceedings, and direct that the investigation be made anew after notice to the representative of Sharifu Bibi.

4. Costs to abide the event.


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