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Gangadas Dahyabhai Vs. Bai Suraj - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 299 of 1910
Judge
Reported in(1912)14BOMLR250
AppellantGangadas Dahyabhai
RespondentBai Suraj
DispositionApplication dismissed
Excerpt:
.....re-sale-errors in the proclamation-re-sale-liability of defaulting purchaser for deficiency on re-sale-statute relating to procedure-where liability based on statute, the very words of the statute must be followed.;a suit brought by 8 was dismissed and a decree for defendant's costs (rs. 96-2-10) was passed against s. the defendant sold the decree to n, who in execution attached s's house. at a sale held by the court, g purchased the house for rs. 1325 and depasited one-fourth of the purchase-money. g made a default in paying the balance in consequence of which the house was again put up to sale. a second proclamation of sale was issued. the descriptions contained in both the proclamations were inaccurate. at the resale rs. 260 only were realised. s's widow then applied to the court of..........the learned subordinate judge had attached excessive importance to a mere clerical error in the re-sale proclamation.5. the errors in the proclamation are stated by the sub-ordinate judge as follows:-the proclamation exhibit 18 is for the first sale. in the body of the process the property is described as belonging to the plaintiff, that is, to shivlal bhagwan. and yet in the title this shivlal is entered as the defendant. then in the tabular statement, the property is again mentioned as belonging to the plaintiff. in the second note below this statement, the property is called the plaintiff's. then comes exhibit 54 the proclamation relating to the second sale or re-sale. here nathoo is described as both ' defendant and plaintiff', and shivlal's widow sooraj is described as the 1.....
Judgment:

Basil Scott, Kt., C.J.

1. This was an application by the applicant, under Section 293 of the Civil Procedure Code of 1882, to recover from the opponent the deficiency of price on a re-sale of the applicant's interest in a house purchased at the first sale by the opponent.

2. The lower Court rejected the application on the ground that owing to an error in the proclamation of the re-sale, the property re-sold was not the same as the property sold.

3. The applicant, who was the judgment-debtor, appealed.

4. The learned Judge of the lower appellate Court held that the learned Subordinate Judge had attached excessive importance to a mere clerical error in the re-sale proclamation.

5. The errors in the proclamation are stated by the Sub-ordinate Judge as follows:-

The proclamation Exhibit 18 is for the first sale. In the body of the process the property is described as belonging to the plaintiff, that is, to Shivlal Bhagwan. And yet in the title this Shivlal is entered as the defendant. Then in the tabular statement, the property is again mentioned as belonging to the plaintiff. In the second note below this statement, the property is called the plaintiff's. Then comes Exhibit 54 the proclamation relating to the second sale or re-sale. Here Nathoo is described as both ' defendant and plaintiff', and Shivlal's widow Sooraj is described as the 1 'defendant' in the heading. Then in the body of the proclamation it is said that the property of the 'defendant' is going to be sold; whilst in the tabular statement it is said that the property of the 'plaintiff' is going to be sold. This sale proclamation even taken by itself is absurd. In the body of it, the property is said to be the 'defendant's' whilst in the tabular statement it is said to be the 'plaintiff's' property that is going to be sold. Then again, it is difficult to understand who is the plaintiff and who the defendant. The proclamation is unintelligible and we cannot say whose property has been sold.

6. Now the property to be sold was right, title and interest of one Shivlal, who, though the plaintiff in the suit, was judgment-debtor, because a decree had been passed under which he was liable for costs. It may be that the fact that the plaintiff was the judgment-debtor was the cause of inconsistencies between that two proclamations to which the learned Subordinate Judge its called attention. The fact, however, remains that in Exhibit 18 the property to be sold is the right, title and interest of the: plaintiff. And, if reference is made to the title of that proclamation, it will be seen that the plaintiff is Samarath. In the second case the property to be sold is the right, title and interest of the defendant and, if the title of the proclamation is referred to, it is seen that the defendant is Shivlal. Under these circumstances the learned Subordinate Judge had ground for saying that the property sold was not the same in each case. Should we then accede to the view of the lower appellate Court that excessive importance has been attached to a mere clerical error? It must be remembered that this is an attempt to make auction-purchaser at the first sale liable for a difference in the result of the two sales. That liability is the creation of a Statute relating to procedure and that Statute lays down in very clear terms that in the proclamation of sale the proclamation shall specify as fairly and accurately as possible the property to be sold. It is admitted that the first proclamation did not state either fairly or accurately the property to be sold, and, as it is sought to fix the liability upon the present appellant by reason of the words of the Statute, we think that he is entitled to appeal to the words of Section 287 to show that the Statute has not been complied with and that it cannot be said that there was a re-sale of the property which was put up in the first instance.

7. For these reasons we reverse the decree of the lower appellate Court and dismiss the application with costs throughout upon the applicant.


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