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Dhir Singh Vs. Peer Bux and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revision 2451 of 1978 (Second Appeal No. 3057 of 1968 treat as revision)
Judge
Reported inAIR1979All22
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 21, Rule 90 - Order 43, Rule 1
AppellantDhir Singh
RespondentPeer Bux and anr.
Appellant AdvocateV.K. Khanna and ;Rishi Ram, Advs.
Respondent AdvocateStanding Counsel
DispositionRevision allowed
Excerpt:
.....- sale was brought upon by act of judgment-debtor - no substantial injury caused as such through sale - such sale cannot be set aside. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools..........subject-matter of appeal before the district court which was heard and allowed by the court of the civil judge, bijnor by order dated july 31, 1968. the learned civil judge held that there had been material violation of the mandatory rules in as much as the sale of the land had been effected without prior attachment of the property. this ground was not raised at any time before the sale. on the other hand, the judgment-debtor had expressly stated that the land could be sold even without a sale proclamation in exchange for some other land which had been attached and proclaimed to be sold by the court. the judgment-debtor herself invited the sale of the property and there was no question of any material injury being caused to her by the sale having been effected without prior attachment......
Judgment:
ORDER

Deoki Nandan, J.

1. This is a second appeal from a proceeding to set aside a sale under Order XXI, Rule 90 of the Civil P. C. Several grounds were raised in support of the application but they did not find favour with the executing court which dismissed it with costs. An appeal lies from the refusal to set aside the sale which was the main subject-matter of appeal before the District Court which was heard and allowed by the Court of the Civil Judge, Bijnor by order dated July 31, 1968. The learned Civil Judge held that there had been material violation of the mandatory rules in as much as the sale of the land had been effected without prior attachment of the property. This ground was not raised at any time before the sale. On the other hand, the judgment-debtor had expressly stated that the land could be sold even without a sale proclamation in exchange for some other land which had been attached and proclaimed to be sold by the court. The judgment-debtor herself invited the sale of the property and there was no question of any material injury being caused to her by the sale having been effected without prior attachment. However, since in the opinion of the learned Civil Judge the sale violated the mandatory procedure prescribed by law, he set it aside. The decree-holder has appealed in this Court.

2. Now a second appeal does not lie from an order passed on appeal under Section 104 read with Order XLIII of the Civil P. C. Nevertheless, this Court has jurisdiction to revise the order under Section 115 of the Civil P. C.

3. The judgment-debtor respondent is unrepresented in this Court. Sri V. K. Khanna, learned counsel for the decree-holder appellant invited my attention to a Division Bench decision of this Court in Haji Rahim Bux and Sons v. Firm Samiullah and Sons (AIR 1963 All 320) wherein it was held that failure to attach a property before sale did not render the sale completely null and void. It was argued that no doubt a sale of property without attachment was an irregularity, but the sale could be set aside only on proof of substantial injury and not otherwise. In the present case it has been seen above that the sale was invited by the judgment-debtor herself by offering the property for being sold even without a sale proclamation in lieu of some other property which had been attached and had been put up for sale in execution of the decree. In these circumstances, it can certainly be said that the judgment-debtor could not suffer any injury by the sale much less substantial injury. The learned Civil Judge on first appeal has certainly committed an illegality of procedure in setting aside the sale on the ground that the property had not been attached before the sale although the judgment-debtor did not sustain any injury by reason of the irregularity. It follows that the learned Civil Judge committed an illegality in the exercise of his jurisdiction inasmuch as he lost sight of the proviso to Rule 90 of Order XXI of the Civil P. C., as it then stood. Accordingly although no appeal lies from the order of the Court of the Civil Judge, Bijnor, on appeal from the executing court's order under Order XXI, Rule 90, I consider the case to be a fit one for the exercise of the revisional powers of this Court under Section 115 of the Civil P. C., and do in the exercise of those powers suo motu set aside the order of the Civil Judge, Bijnor in Misc. Civil Appeal No. 3 of 1968 and restore the order of the Court of Munsif, Bijnor in Misc. Case No. 113 of 1966 of his Court. There will be no orders as to costs as the judgment-debtor respondent was un-represented in this Court.


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