Skip to content


Krishna Parsharam Chambhar Vs. Bhau Piraji Phalle - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 342 of 1927
Judge
Reported in(1929)31BOMLR331
AppellantKrishna Parsharam Chambhar
RespondentBhau Piraji Phalle
Excerpt:
civil procedure code (act v of 1908), section 115, order xxi, rule 90-decree- execution -court-sale- irregularity in sale-auction-purchaser not a party to the fraud - order refusing to set aside the sale-revision application against the order.;the high court will not interfere in revision with an order passed by the lower court following one out of two divergent lines of authorities and refusing to set aside a court-sale on the ground that the auction-purchaser was not a party to the fraud alleged as vitiating the sale. - - the second appeal is barred under section 104, clause (2), of the civil procedure code and must, therefore, be dismissed with costs as no second appeal lies from an order of the kind referred to in section 104. the civil revision application has been heard on the..........in chitambar v. krishnappa i.l.r.(1902) 26 bom 543 that where property is sold in auction under a decree fraudulently obtained, mere inadequacy of price apart from participation in or knowledge of the fraud is not in itself a circumstance sufficient to justify the setting aside of the sale.4. i have quoted decisions on each side from which it will be seen that at different times various courts have taken different views of the liability of an innocent purchaser to have his sale set aside on account of fraud committed by the decree-holder or irregularities in the sale. i do not propose to decide this question one way or the other. i am merely using this for the purpose of showing that the view taken by the lower appellate court is based on a set of authorities and that because the court.....
Judgment:

Baker, J.

1. The facts of this case are simple. The opponent No. 2 Anandibai obtained a decree against the applicant No. 1 and in execution proceedings the property of applicant No. 1 was sold and purchased by opponent No. 1. Subsequently the judgment-debtor presented an application under Order XXI, Rule 90, to the effect that the notice was not properly served upon him, he had no notice of the sale, and that he had sustained substantial injury by reason of this. The Subordinate Judge of Karad found that the decree-holder had got notice fraudulently served in an irregular and improper manner, that it was impossible for the judgment-debtor to know of the sale and that the sale was on that account vitiated by a material irregularity in publishing it and also by the fact that the correct assessment of the land was not shown in the proclamation of sale and the property was sold at a grossly inadequate price and the judgment-debtor had suffered substantial injury on that account. He, therefore, set aside the sale under Order XXI, Rule 90. On appeal by the auction purchaser, the Assistant Judge, Satara, came to the same conclusion as the Subordinate Judge as to the irregularity and the substantial injury suffered by the judgment-debtor but relying on the observation of the Privy Council in the case of Lalla Bunseedhur v. Koonwur Bindeseree Dutt Singh (1866) 10 M.I.A. 454 and also on the observations of Sir Lawrence Jenkins in Paresh Nath Mallick v. Hari Charan Dey I.L.R(1911) .Cal. 622 he held that the auction-purchaser not being a party to the fraud committed by the decree-holder was entitled to the protection of the Court. He, therefore, held that no fraud being alleged or proved as against the purchaser his position is that of an innocent man, and between two innocent men he ought to be protected and the Judge while recognizing the hardship caused to the judgment-debtor set aside the order of the trial Court and directed the application to be dismissed. The judgment-debtor thereupon under that section appealed to this Court and also presents this civil revision application. The second appeal is barred under Section 104, Clause (2), of the Civil Procedure Code and must, therefore, be dismissed with costs as no second appeal lies from an order of the kind referred to in Section 104. The civil revision application has been heard on the point of law as well as on the merits. It is an application under Section 115 of the Civil Procedure Code. And the first and most important point in it is whether this Court has jurisdiction to interfere in view of the rulings of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh I.L.R(1884) . Cal. 6 and Balakrishna Udayar v. Vasudeva Ayyar I.L.R(1917) . Mad. 798

2. The learned pleader for the applicant has argued at length to show that this is a case in which the lower appellate Court has in the exercise of its jurisdiction acted illegally or with material irregularity. In my opinion it is nothing of the kind. The lower appellate Court had jurisdiction to hear the appeal and if on the law as the lower appellate Court understood it, it came to a decision which does not commend itself to the applicant and as a matter of fact does cause him some hardship, that is not, in my opinion, either illegal or a material irregularity.

3. It has been laid down in plain terms by the Privy Council in the two cases which I have quoted above that in order to give the Court jurisdiction under Section 115 the point at issue must be one of jurisdiction. It has been held that provided a Court has jurisdiction to entertain a case, even if it decides it wrongly, it is not a ground for interference under Section 115. In the present case it cannot even definitely be said that the lower Court's decision is wrong in law. There are rulings on both sides. The lower appellate Court has relied as I have said on the observations of the Privy Council in Lalla Bunseedhur v. Koonwur Bindeaeree Dutt Singh and Paresh Nath Mallick v. Hari Charan Dey, as to the necessity of protecting an innocent purchaser in order to give confidence in the sales carried out by the Court. The learned pleader for the applicant has referred to the case of Bireswar Ghose v. Panchkouri Ghose (1922) 27 C.W.N. 587 where the authorities have been reviewed at great length including those to which I have referred above and the Court came to a contrary conclusion to that arrived at in Paresh Nath's case, viz., that there is a long and uniform series of decisions of the Calcutta High Court to the effect that an execution gale which has been brought about by fraud of the decree-holder is liable to be set aside on that ground even though it is not established that the auction purchaser has participated in or has been cognizant of the fraud. On the other hand this Court has held in Chitambar v. Krishnappa I.L.R.(1902) 26 Bom 543 that where property is sold in auction under a decree fraudulently obtained, mere inadequacy of price apart from participation in or knowledge of the fraud is not in itself a circumstance sufficient to justify the setting aside of the sale.

4. I have quoted decisions on each side from which it will be seen that at different times various Courts have taken different views of the liability of an innocent purchaser to have his sale set aside on account of fraud committed by the decree-holder or irregularities in the sale. I do not propose to decide this question one way or the other. I am merely using this for the purpose of showing that the view taken by the lower appellate Court is based on a set of authorities and that because the Court followed the view taken by one set of authorities rather than the view taken by the other it is impossible to say that it thereby acted illegally or irregularly, and my view would have been precisely the same if the Court; had decided the other way.

5. It has been attempted to be shown that the provisions of Order XXI, Rule 90, have been violated because the lower appellate Court has not set aside the sale. Order XXI, Rule 90, provides :-

Where any immovable property hag been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets...may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

The rule does not deprive this Court of its discretion in deciding each particular case according to the circumstances which appear therein. I do not think it necessary to refer in any detail to the cases which have been quoted by the learned pleader for the applicant in which the various High Courts have interfered in revision under Section 115 with the orders of the lower Courts which were held to have been passed in the exercise of their jurisdiction illegally or with material irregularity. Each case must be decided on its own facts and I have not the slightest hesitation in holding that in the present case the lower appellate Court has not acted either illegally or with material irregularity and the matter being clearly one within its jurisdiction there can be no interference by this Court in revision under Section 115 of the Civil Procedure Code. It may be that the judgment-debtor has been put to loss on account of the fraud of the decree-holder. That would be no justification for interference by this Court or for me to assume jurisdiction which in the circumstances of the case I do not possess. The result, therefore, is that the application fails and must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //