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Kadir Baksh and anr. Vs. Ghazi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All212
AppellantKadir Baksh and anr.
RespondentGhazi and ors.
Excerpt:
extension of decree - irregularity--sale in execution--act viii of 1859, section 257. - 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 which are established and administered by the..........been prejudiced, and therefore i do not think that the suit can be maintained.oldfield, j.7. the application for execution contained this error, that it referred to the decree of which execution was sought as bearing date may 5th 1866, whereas the subsisting decree which alone was capable of execution was of date december 12th, 1864.8. notwithstanding this error in the application, the execution-proceedings were made in effect, though not nominally, with reference to the latter decree, and the irregularity, such as it was, pervaded the entire proceedings in execution, including the publication of the sale, and it was made the ground of an objection to the confirmation of the sale under section 256, act viii of 1859, and the objection was disallowed. this being so, i am of opinion that.....
Judgment:

Robert Stuart, C.J.

1. The wrong date given to the decree in the application for execution must have been, J think, not so much a clerical error as a legal mistake on the part of the pleader or other person who prepared the application. But it is a mistake, an innocent mistake perhaps, which clearly appears as such on the lace of the record, and which, I think, we are entitled to disregard, being, as the reference suggests, a mere error which in no way prejudiced the judgment-debtor.

Pearson, J.

2. What is called a clerical error appears to me to have been rather erroneous procedure; but I am bound to admit that the ruling of which the propriety is called in question is not one which on reconsideration I am prepared to maintain, and that the view that the sale ought not to be set aside for an error which did not prejudice the judgment-debtor commends itself to my judgment.

Turner, J.

3. The decree which Mussammat Zahuran obtained in the Court of the Principal Sudder Amin in December 1864 was affirmed in appeal on the 5th May 1866, and although the decree of the Appellate Court was set aside, and a re-hearing of the appeal ordered in December 1866, the original decree was again affirmed in January 1867. When then the decree-holder in 1869 and in 1870 applied to continue the proceedings in execution which she had commenced in 1866, although she erroneously referred in the heading of her application to the decree of the Appellate Court passed in May 1866, which had been set aside, both the decree of the Court of First Instance subsisted and a decree of the Appellate Court affirming that decree.

4. The proceedings in 1869 and in 1870 were a continuation of the proceedings commenced in 1866, wherein she had sought to execute not only the decree of the Appellate Court, but the decree of the Court of First Instance, which the decree of the Appellate Court affirmed.

5. Under these circumstances, it seems inequitable to hold that an innocent purchaser is to be damnified by an error which in no way prejudiced the judgment-debtor, and which, had he thought fit to intervene before the sale was ordered, might easily have been corrected. In my judgment the sale ought not to be set aside.

Spankie, J.

6. I am of opinion that the error was more than clerical and amounted to a material irregularity, but not to one by which the judgment-debtor could be really said to have been prejudiced, and therefore I do not think that the suit can be maintained.

Oldfield, J.

7. The application for execution contained this error, that it referred to the decree of which execution was sought as bearing date May 5th 1866, whereas the subsisting decree which alone was capable of execution was of date December 12th, 1864.

8. Notwithstanding this error in the application, the execution-proceedings were made in effect, though not nominally, with reference to the latter decree, and the irregularity, such as it was, pervaded the entire proceedings in execution, including the publication of the sale, and it was made the ground of an objection to the confirmation of the sale under Section 256, Act VIII of 1859, and the objection was disallowed. This being so, I am of opinion that this suit cannot be maintained with reference to Section 257, Act VIII of 1859.


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