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Maharaj Bahadur Singh Vs. A.H. Forbes - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1921)23BOMLR727
AppellantMaharaj Bahadur Singh
RespondentA.H. Forbes
DispositionAppeal dismissed
Excerpt:
civil procedure-allowance of interest- sale in execution of decree-payment to decree-holder-security bond-sale set aside and refund ordered-whether refund should be with interest-code of civil procedure 'act v of 1908', suc. 144 and order xxi, rull 93.;where part of the purchase money upon a sale in execution has been paid out to the decree-holder under a security bond, and the sale is subsequently set aside, the court has power under order xxi, rull 93, to order that interest be paid for the period during which the decree-holder has had the use of the money, even though the security bond does not provide for the interest. - .....with rule 91 of the same order. the sale was duly set aside; and accordingly order xxi, rule 93, applied and the court had power to order interest to be paid on the sum of rs. 40,708 paid to the trustees. this being by it is unnecessary to consider whether, as the high court appears to have held, section 144 of the code of 1908 also applied. it is true that the bond did not reserve interest, but the effect of this omission was, not that the court was deprived of its power to order interest to be paid, but only that the security did not extend to interest. it is common ground that the order so far as it directs the payment of interest is not intended to be enforced against the appellant personally, but only binds the estate in the hands of the trustees in which the appellant is.....
Judgment:

Viscount Cave, J.

1. In their Lordships' opinion there is no ground for this appeal. Proceedings to set aside the sale were taken both under Section 311 of the Civil Procedure Code of 1882, corresponding with Order XXI, Rule 90, of the Rules scheduled to the Civil Procedure Code of 1908, and under Section 313 of the Code of 1882, corresponding with Rule 91 of the same Order. The sale was duly set aside; and accordingly Order XXI, Rule 93, applied and the Court had power to order interest to be paid on the sum of Rs. 40,708 paid to the trustees. This being by it is unnecessary to consider whether, as the High Court appears to have held, Section 144 of the Code of 1908 also applied. It is true that the bond did not reserve interest, but the effect of this omission was, not that the Court was deprived of its power to order interest to be paid, but only that the security did not extend to interest. It is common ground that the order so far as it directs the payment of interest is not intended to be enforced against the appellant personally, but only binds the estate in the hands of the trustees in which the appellant is interested.

2. An attempt was made to raise a question of limitation, but this question was not raised in the Courts below or in the appellant's case on this appeal, nor are the facts upon which it depends fully before the Board. This plea, therefore, cannot be raised at this stage.

3. Their Lordships will accordingly humbly advise His Majesty that this appeal should be dismissed with costs.


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