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Parashram Hanmanta Vs. Balmukund Lachiram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 883 of 1907
Judge
Reported in(1908)10BOMLR752
AppellantParashram Hanmanta
RespondentBalmukund Lachiram
Excerpt:
.....311, 312 and 244(c)-execution of decree-absence of notice to the judgment debtor-proclamation of sale -sale at an undervalue-application to set aside sale-dismissal-appeal against order of dismissal.; an application seeking to have the sale set aside on the ground that no notice had been issued to the applicant in the matter and that in consequence the property was sold at an undervalue, does not fall within the purview of section 311 of the civil procedure code, 1882; and an order dismissing the same is not covered by section 312 of the code. the order falls under section 244(c) of the code, and is appealable as a decree.; the non-issue of notice to a party concerned is not a material irregularity in publishing or conducting the sale under section 311 of the civil procedure code,..........of notice to a party concerned is a material irregularity in publishing or conducting the sale. in our opinion it is not. it is rather an irregularity in proceedings which are anterior to the publishing or the conduct of the sale. we think that the words ' publishing or conducting ' the sale refer respectively to the proclamation of sale under section 287 and to the action of the officer by whom the sale was held. in our opinion, then, this application does not fall under section 311, and the order consequently does not fall under section 312. that being so, the order in our opinion falls under clause (c) of section 244. it has been suggested that clause (c) of section 244 is inapplicable inasmuch as the decree was already executed, but the question involved was none the less a.....
Judgment:

Batchelor, J.

1. A preliminary objection has been raised by Mr. Desai for the respondents to the effect that in this case no second appeal lies. That objection is founded upon the argument that the order passed by the District Judge is an order under Section 312 of the Civil Procedure Code. If that is the real character of the order, it follows that under Sub-section 16 of Section 388 no second appeal is permissible. With a view to decide this question it is requisite to see whether the order appealed from is an order under Section 312 or not, and to that end we must look to the application which the order refuses. If that application, in the words of Section 311, is an application 'to set aside the sale on the ground of material irregularity in publishing or conducting it,' then no doubt the order falls under Section 312.

2. Now the application here seeks to have the sale set aside on the ground that no notice has been issued to the applicant in the matter and that in consequence the property was sold at an undervalue. Thus the question is whether the non-issue of notice to a party concerned is a material irregularity in publishing or conducting the sale. In our opinion it is not. It is rather an irregularity in proceedings which are anterior to the publishing or the conduct of the sale. We think that the words ' publishing or conducting ' the sale refer respectively to the proclamation of sale under Section 287 and to the action of the officer by whom the sale was held. In our opinion, then, this application does not fall under Section 311, and the order consequently does not fall under Section 312. That being so, the order in our opinion falls under Clause (c) of Section 244. It has been suggested that Clause (c) of Section 244 is inapplicable inasmuch as the decree was already executed, but the question involved was none the less a 'question relating to the satisfaction of the decree' within the meaning of the Clause. Upon this point reference may be made to Hira Lal Ghose v. Chundra Kanto Ghose (1899) L.R. R. 26 Cal, 539. The result, therefore, is that in our opinion the second appeal is competent and upon the merits we have no doubt that the order made is not sustainable. Though the sale took place eight years after the decree, no notice was issued to the appellant who in his application has protested his willingness to pay Rs. 779 for this property which has fetched only Rs. 490.

3. For these reasons we set aside the order made and direct that the property be resold if necessary, after due notice to all the parties including the present appellant. We say 'if necessary' because it may be that the best disposal of the property will be to accept the offer of the present appellant. The appellant must have his costs throughout.


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