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Fazal Rab Vs. Manzur Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1918All192; (1918)ILR40All425; 45Ind.Cas.773
AppellantFazal Rab
RespondentManzur Ahmad and ors.
Excerpt:
.....to set aside sale in execution--decree sent to collector for execution--tender of money to the collector, the civil courts being closed--'court.' - - in has been decided by their lordships of the privy council that the high court is not entitled to create what are really appeals put forward in the shape of revisions, and accordingly, even if we thought that under the exceptional circumstances of this case the lower appellate court might very well have upheld the court of first instance, this would not justify us in interfering with the decision of the lower appellate court in revision. we think that the question whether or not the section has been complied with completely was clearly a question which the court below had jurisdiction to decide, that it exercised its..........property; that he could not deposit the decretal amount plus five per cent, compensation to the auction purchaser as the civil court was closed, but he was anxious to lodge the money in the treasury. the money was accepted by the collector. on the 11th of november, which was the day on which the civil court opened, the judgment-debtor applied to have the sale set aside and stated how the money had been already deposited in the treasury. there was a rubkar from the treasury to the effect that the money had been deposited. in december following the civil court directed that the money should be transferred to the account of the civil court. the court of first instance, thereupon, set aside the sale holding that the money had been deposited within thirty days. the auction purchaser.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. The facts connected with this application may be stated very shortly. There was a decree for about Rs. 1,000. Certain property of the judgment-debtor was directed to be sold. The sale was held by the Collector on behalf of the Civil Court. The sale took place on the 20th of September, 1916. The property was put up to the sale and fetched Rs. 850. On the 15th of October, the judgment-debtor came to the Collector and stated that he was anxious to have the sale set aside and to save the property; that he could not deposit the decretal amount plus five per cent, compensation to the auction purchaser as the Civil Court was closed, but he was anxious to lodge the money in the Treasury. The money was accepted by the Collector. On the 11th of November, which was the day on which the Civil Court opened, the judgment-debtor applied to have the sale set aside and stated how the money had been already deposited in the treasury. There was a rubkar from the treasury to the effect that the money had been deposited. In December following the Civil Court directed that the money should be transferred to the account of the Civil Court. The court of first instance, thereupon, set aside the sale holding that the money had been deposited within thirty days. The auction purchaser appealed, and the lower appellate court held that the money had not been deposited within thirty days or on the 11th of November which was the day on which the Civil Court opened, and accordingly the rule had not been complied with and the auction purchaser was entitled to the benefit of his purchase. The judgment-debtor has applied in revision. There is no appeal from the orders of the lower appellate court refusing to set aside the sale It is contended in the first place that the money was in fact deposited within the meaning of the rule and that consequently the lower appellate court had no jurisdiction to refuse to set aside the sale, and in the second place that the court of first instance having set aside the sale no appeal by the auction purchaser lay to the lower appellate court.

2. Rule 89 provides 'where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in court, (a) for payment to the purchaser a sum equal to five per cent, of the purchase money, and (b) for payment to the decree-holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.'

3. Rule 92, Clause 2, provides 'that where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of the sale, the court shall make an order setting aside the sale.'

4. The question which the court below had to decide was whether or not the money had been deposited in court. It is quite clear that 'court' means the Civil Court. This was a question which admittedly the lower appellate court had not only jurisdiction but was bound to decide. It is somewhat difficult to say whether the court was not technically right in holding, unfortunate though the judgment-debtor may have been, in strictness that the money was not deposited in court within thirty days or on the 11th of November, which was the first day the court opened. It was not until December following that the money was accepted in the Civil Court by ordering the transfer of the deposit to the Civil Court account. In has been decided by their Lordships of the Privy Council that the High Court is not entitled to create what are really appeals put forward in the shape of revisions, and accordingly, even if we thought that under the exceptional circumstances of this case the lower appellate court might very well have upheld the court of first instance, this would not justify us in interfering with the decision of the lower appellate court in revision.

5. In this connection it must be remembered that the deposit of the purchase money plus 5 per cent, compensation of the decretal amount to the auction purchaser is an indulgence to the judgment-debtor. The auction purchaser is entitled to the benefit of his purchase unless the Section has been strictly and completely complied with. We think that the question whether or not the Section has been complied with completely was clearly a question which the court below had jurisdiction to decide, that it exercised its jurisdiction, and that even if we thought it had come to an erroneous conclusion, we would not have been entitled to interfere in revision.

6. As to the second contention, namely, that an auction purchaser has no right to appeal. The Code undoubtedly gives a right of appeal against an order setting aside the sale. The party mainly affected by the setting aside of the sale is the auction purchaser, and the Code provides that the sale should not be set aside without notice to him. We think it would be most unreasonable to hold that the Code restricts the right of appeal to the decree-holder or judgment-debtor. We think the application fails and we accordingly dismiss it with costs.


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