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Shivbai Babya Swami Vs. Yesu Cheoo Nayakin - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 115 of 1917
Judge
Reported inAIR1919Bom175; (1918)20BOMLR925
AppellantShivbai Babya Swami
RespondentYesu Cheoo Nayakin
Excerpt:
civil procedure code (act v of 1908), sections 47, 144, 151-ex parte decree-sale of a house in execution-ex parte decree subsequently set aside-retrial ends in a decree in plaintiff's favour-application to set aside sale-limitation act (ix of 1908), arts. 166, 181-time within which application to be made-sale set aside on defendant paying up amount of the second decree.;the plaintiff obtained an ex parte decree for rs. 86 against the defendant in 1906, in execution of which the defendant's house was sold and purchased by the plaintiff in 1910. subsequently, the defendant succeeded in getting the ex parte decree set aside and in having the case retried; but the result was that a decree for rs. 87 was passed in plaintiff's favour in 1914. the defendant next applied to have the previous sale..........was sold in execution of that decree in 1910, but she succeeded in subsequently getting the ex parte decree set aside and in having the case retried. the plaintiff yesu succeeded in the retrial in obtaining a decree against the defendant shivbai for a sura of rs. 87 in 1914. but shivbai then applied to have the previous sale of the house in execution set aside. that application was granted by the court of first instance, but was rejected by the court of first appeal which appears to have treated the application as one under section 47 of the civil procedure code. shivbai has accordingly come to get that decision set aside in second appeal.2. the substantial point argued has been whether in the circumstances stated the previous sale of the house in execution could be set aside, and.....
Judgment:

Hayward, J.

1. The plaintiff Yesu got an ex parte decree for Rs. 86 against the defendant Shivbai in 1906. Shivbai's house was sold in execution of that decree in 1910, but she succeeded in subsequently getting the ex parte decree set aside and in having the case retried. The plaintiff Yesu succeeded in the retrial in obtaining a decree against the defendant Shivbai for a sura of Rs. 87 in 1914. But Shivbai then applied to have the previous sale of the house in execution set aside. That application was granted by the Court of first instance, but was rejected by the Court of first appeal which appears to have treated the application as one under Section 47 of the Civil Procedure Code. Shivbai has accordingly come to get that decision set aside in second appeal.

2. The substantial point argued has been whether in the circumstances stated the previous sale of the house in execution could be set aside, and reliance has been placed for the finding in the negative upon the case of Shivlal v. Shambhuprasad (1905) 7 Bom. L.R. 585 F.b.. But it has been replied to that argument that that case referred particularly to the equities arising in favour of a third party being a bona fide purchaser for value without notice at the Court-sale. It seems to me that there is force in this argument, particularly in view of the remarks of the Privy Council in the case of Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan I.L.R. (1887) All. 166 P.C., in which their Lordships of the Privy Council pointed out at page 172 that 'there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order.' That distinction has recently been again referred to in the case of Set Umedmal v. Sri Nath Ray I.L.R. (1900) Cal. 810 It seems to me, therefore, upon the equities and upon the authorities that the previous sale of the house in execution under the previous decree which had been set aside ought itself to be set aside as being no longer based on any solid foundation.

3. There was also some argument as to the particular rule under which such an order could be made. It seems to mo that the order must be held to be made, as decided without subsequent objection by the first appeal Court, under Section 47 of the Civil Procedure Code, and if any further authority for such an order should be required, then it seems to me that a reference could be made either to Section 144 or Section 151 of the Civil Procedure Code. It has been urged that the former section does not cover a case in which an ex parte decree has been set aside. But it seems to me that the words used are sufficiently wide to cover even such a case though the use of the word 'varied' or 'reversed' and the reference to 'the Court of first instance' would appear on first sight to have had primarily in view, proceedings in appeal. But however that may be, the case would, in my opinion, undoubtedly be covered by Section 151 of the Civil Procedure Code. There can, in my opinion, be no real doubt in such a case as to there being a second appeal, because the proceedings were, as already stated, under Section 47 to which it has merely become necessary by reference to apply the provisions of Section 144 or 151 of the Civil Procedure Code.

4. It was also suggested that the application ought to be regarded as time-barred under Article 166 of the Schedule to the Limitation Act: But that Article appears to be hardly applicable to the facts of this particular case. The cause of action accrued upon setting aside the ex parte decree in 1914 and taking that as the date from which limitation ran, the application would clearly be within time under the provisions of Article 181 of the Schedule to the Limitation Act.

5. We ought, therefore, in my opinion, to set aside the order of the first appeal Court and to direct that the previous sale of the house in execution should be set aside, but subject in all the circumstances to this condition that Shivbai pays up the amount now due from her under the second decree within three months of the decision of this second appeal.

6. Each party to bear his own costs throughout.

Heaton, J.

7. I have very little to add to the judgment just delivered. I would however add this. We have here a case of a wrong which has been done to the applicant, because her property was sold under an ex parte decree wrongly obtained. She was ignorant of the decree and even of the sale which thereafter took place under it and therefore was unable within the period allowed by limitation to get the sale set aside by the ordinary application which must be made within one month. And if she is to get it set aside at all, it can only be either by suit or by an application of another kind. It has been decided by the District Court and against this decision there was no appeal, that this application should be treated as one under Section 47. We are therefore only concerned with the question whether the Court has the power to set aside the sale. That question my learned brother has dealt with and I agree to the order proposed.


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