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Premraj Motiram Marwadi Vs. Javarmal Gomaji Marwadi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCros Appeal Nos. 837 and 838 of 1909
Judge
Reported in(1913)15BOMLR41
AppellantPremraj Motiram Marwadi;vasudeo Anant Dalal
RespondentJavarmal Gomaji Marwadi;premraj Motiram Marwadi
DispositionAppeal dismissed
Excerpt:
.....against the estate of the deceased represented 'by a wrong heir-sale of the estate in execution-sale and decree are nullity-refund of purchase-money from decree-holder.;a court has no jurisdiction to sell the property of a person who is the heir of a deceased person but is not made a party to the suit brought by the creditor of the deceased against his estate; and the decree and the sale in execution of the decree are, therefore, a nullity as against the heir.;the purchaser at the auction sale held in execution of such a decree is entitled to proceed against the decree-holder and claim a refund of the money which has gone into the pocket of the decree-holder with interest from the date of payment until re-payment.;nityanund boy v. juggat chandra gaha (1902) 7 c.w.n. 105 follows. - - ..........but the learned judge has declined to order the fifth defendant to refund to the appellant the money paid by the latter.5. upon the first point as to the effect of the appellant's purchase at the court-sale we agree with the district judge. it is quite clear that no court has any authority or jurisdiction to sell a's property for a debt due by b. that is what was done here, and the decree is clearly a nullity. the estate of vithu was not represented, inasmuch as the defendants 1 to 4 could not represent it, and defendant no, 6, who on the findings could alone represent it, was not made a party. it is, we think, obvious that no title could pass by virtue of a sale following upon such a decree as this. indeed mr. nadkarni has not pressed this point but has relied solely upon his second.....
Judgment:

Batchelor, J.

1. The appellant before us was the plaintiff in the suit, and was the purchaser of the property in suit at a Court sale held at the instance of the decree-holder, the fifth defendant. The original owner of the property was one Vithu Shivram. After his death a claim to his property was made by the defendants Nos. 1 to 4 as being beneficiaries under Vithu's will. Now the defendant No. 5 was a creditor of Vithu, and in 1902 after Vithu's death he brought a suit against defendants 1 to 4 as representing Vithu's estate for the recovery of the moneys due to him by that estate. He obtained a decree and thereafter had this property attached and put to sale.

2. In March 1905 at the auction sale the appellant purchased the property. On the 3rd of July 1905 the sale was confirmed, and under the sale-certificate the appellant applied for possession. In his attempt to obtain possession, however, he was obstructed by the sixth defendant who claimed to be the heir of Vithu. The appellant made an application for the removal of the sixth defendant's obstruction, but that application was decided against the appellant who therefore filed the present suit.

3. Now the appellant claims as the bona fide purchaser at the Court-sale. In the alternative he claims also that, if the Court finds that the defendants 1 to 4 had no interest in Vithu's property, he the appellant should be recouped by the 5th defendant the money, about Rs, 1,100, which the appellant paid to the 5th defendant for the property.

4. In the trial Court the appellant obtained a decree for possession. The sixth defendant appealed, making respondents in his appeal the present appellant and the decree-holder, the fifth defendant. In the appeal the District Judge has come to the conclusion that the decree was not properly obtained against Vithal's estate, inasmuch as the real heir to that estate was the sixth defendant. He has, therefore, determined that the appellant took no interest by his purchase at the Court-sale. But the learned Judge has declined to order the fifth defendant to refund to the appellant the money paid by the latter.

5. Upon the first point as to the effect of the appellant's purchase at the Court-sale we agree with the District Judge. It is quite clear that no Court has any authority or jurisdiction to sell A's property for a debt due by B. That is what was done here, and the decree is clearly a nullity. The estate of Vithu was not represented, inasmuch as the defendants 1 to 4 could not represent it, and defendant No, 6, who on the findings could alone represent it, was not made a party. It is, we think, obvious that no title could pass by virtue of a sale following upon such a decree as this. Indeed Mr. Nadkarni has not pressed this point but has relied solely upon his second ground of contention, that is to say his claim that the fifth defendant should in these proceedings be ordered to refund to his client the money which his client paid for the property. We think that an order to that effect should be made in the appellant's favour. Authority for such an order may, we think, be found in Order XLV, Rule 33, of the present Code and in Nityanund Roy v. Juggat Chandra Guha 7 C.W.N. 105. The question whether the appellant was entitled to this refund was distinctly raised in the fourth issue before the trial Court, and if the decree-holder chose to give no evidence upon this point, he cannot now be heard to urge that he should be given a fresh opportunity for repairing that neglect. We have before us all the facts which are necessary for the purpose of making an order. We have it that at this moment the appellant's money is in the pocket of the fifth defendant, and that the fifth defendant has no justifies ion or excuse for keeping it there.

6. That being so, in Second Appeal No. 837 of 1909 we vary the decree of the Court below by the addition of an order directing that the fifth defendant do repay to the plaintiff-appellant the money which the plaintiff paid at the Court-sale for the property. The sum must be paid with interest at 6 per cent, from the date of the plaintiff's payment to the date of repayment by the decree-holder. The appellant must pay the costs of the first respondent, but in other respects the appellant will get his costs from the fifth defendant.

7. For the same reasons Second Appeal No. 838 of 1909 is dismissed with costs. There will be separate sets.


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