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Bhaichand Saganchand Gujar Vs. Krishnaji Vithal Malge - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 246 of 1929
Judge
Reported in(1931)33BOMLR611
AppellantBhaichand Saganchand Gujar
RespondentKrishnaji Vithal Malge
Excerpt:
.....section 151 of the civil procedure code unless there was a clear proof of the possibility of the sale of j a portion only of the property. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal before the appellate authority. thirdly, even assuming that..........20 of 1920 a decree was passed against the opponent, a minor, for rs. 162. in execution of this decree survey no. 361 was attached in darkhast no. 423 of 1925 and was sold subject to a mortgage on september 19, 1925, and was purchased by the petitioner a third party, in june 1926, the opponent applied to set aside the sale. he failed to produce the five per cent, deposit and that application was rejected. in 1928, he gave the present application to set aside the sale, on the ground that while the executing court had ordered the sale of such portion of the property as would be sufficient to satisfy the decree, the collector had put up to sale the whole survey number and realised rs. 7,600. the trial court held that the application was not maintainable under order xxi, rule 89 or 90,.....
Judgment:

Madgavkar, J.

1. In suit No. 20 of 1920 a decree was passed against the opponent, a minor, for Rs. 162. In execution of this decree Survey No. 361 was attached in darkhast No. 423 of 1925 and was sold subject to a mortgage on September 19, 1925, and was purchased by the petitioner a third party, In June 1926, the opponent applied to set aside the sale. He failed to produce the five per cent, deposit and that application was rejected. In 1928, he gave the present application to set aside the sale, on the ground that while the executing Court had ordered the sale of such portion of the property as would be sufficient to satisfy the decree, the Collector had put up to sale the whole survey number and realised Rs. 7,600. The trial Court held that the application was not maintainable under Order XXI, Rule 89 or 90, and was not in time, but that as the sale had been not merely of a sufficient part of the property to satisfy the decree but was of the whole property, the sale was in contravention of the order of the Court and was void as a violation of the Court's order and could, therefore, be set aside in the exercise of its inherent jurisdiction under Section 151, Civil Procedure Code. It relied upon an unreported case in Akshia Pillai v. Govindarajulu Chetti AIR [1924] Mad. 778, which has no application to the present facts. The auction-purchaser applies in revision.

2. It is argued for the petitioner that the trial Court had no jurisdiction to pass the order it did, and that the property attached was a single survey number the whole of which was mortgaged and no part could, therefore, be separately sold. It is contended for the opponent judgment-debtor that even in respect of such a mortgaged survey number the price realised by the Collector, viz., Rs. 7,600, was so greatly in excess of the decretal debt that it was incumbent upon the Collector to refer the matter back to the Court for orders if there was a difficulty in selling a portion of the property, so that, in such a case the Court might have attached other property; and that in the case of a minor represented by the Nazir whose interests were not properly guarded, the Court as parens patrice: has jurisdiction to set right any injustice arising from the violation of its own order or laxity of its officers.

3. The initial difficulty in the case is that it does not appear from the present record that it was possible to sell a portion of the property; and it is apparent that unless a sale of a portion was possible, it is difficult to say that the Collector's action in selling the whole was a violation of the orders of the Court. Nor can I understand,: as is argued for the opponent, if he had numerous relatives and well wishers, why the latter should have left the litigation to the Nazir and should have taken no steps for so long a time after the decree to satisfy it or even after the sale to have it set aside by the necessary deposit within the period under Order XXI, Rule 89, Civil Procedure Code, by satisfying the decree. On the other hand, unless it is shown that the present auction-purchaser had in any way colluded with the decree-holder or with the minor's guardian, he is entitled to be maintained in possession of the property. I am of opinion that the trial Court had no jurisdiction under Section 151, Civil Procedure Code, unless there was a clear proof of the possibility of the sale of a portion only of the property. That not being proved, the present application ought to succeed.

4. The rule is made absolute, the order of the lower Court is set aside, without prejudice to any relief by the opponent in a proper suit on grounds of collusion or fraud if he can make them out.

5. In the circumstances of the case there will be no order as to costs.


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