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ilahi Bakhsh and anr. Vs. Raghubar Dayal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All450
Appellantilahi Bakhsh and anr.
RespondentRaghubar Dayal
Excerpt:
.....of mortgaged property and for costs--attachment and sale of other property for whole amount of decree--suit to set aside execution-sale--civil procedure code, sections 311, 312--finality of order in execution-proceedings. - - the attachment and sale were made in respect of the costs as well as of the principal and interest decreed, and the objections, therefore, that there was no right under the decree to sell the property in suit, and that the sale is void, in consequence, must fail. and, therefore, even assuming for the purposes of argument that the sale and the confirmation of sale were subject to the objection of 'material irregularity in publishing or conducting' the sale, within the meaning of section 311, i should still say that a suit like the present, upon that ground..........the judgment-debtors mortgaged in the bond; but the decree further ordered that the costs of the decree-holder, rs. 1,034-12-0, were to be recovered from the judgment-debtors, and this sum was recoverable from other property besides the mortgaged property. the attachment and sale were made in respect of the costs as well as of the principal and interest decreed, and the objections, therefore, that there was no right under the decree to sell the property in suit, and that the sale is void, in consequence, must fail.2. i would on this ground decree the appeal, and set aside the decrees of the lower courts,' and dismiss the suit with all costs.mahmood, j.3. i am of the same opinion, but wish to state briefly the reasons which have brought me to it. the facts have been stated by my learned.....
Judgment:

Oldfield, J.

1. The appeal must, in my opinion, prevail. The decree-holder's relief under his decree for the recovery of the principal amount of the debt with interest, viz., Rs. 11,583-0-9, was confined to its recovery by sale of the property of the judgment-debtors mortgaged in the bond; but the decree further ordered that the costs of the decree-holder, Rs. 1,034-12-0, were to be recovered from the judgment-debtors, and this sum was recoverable from other property besides the mortgaged property. The attachment and sale were made in respect of the costs as well as of the principal and interest decreed, and the objections, therefore, that there was no right under the decree to sell the property in suit, and that the sale is void, in consequence, must fail.

2. I would on this ground decree the appeal, and set aside the decrees of the lower Courts,' and dismiss the suit with all costs.

Mahmood, J.

3. I am of the same opinion, but wish to state briefly the reasons which have brought me to it. The facts have been stated by my learned brother Oldfield, and it is unnecessary for me to refer to them further than is unavoidable for the purpose of elucidating my conclusions. The whole question before us, and indeed the only question raised by the learned Junior Government Pleader on behalf of the appellant, is whether the auction-sale of the 15th June 1882, conveyed any such title to the present defendant as would preclude such a suit as this. The first point for consideration is the nature of the suit, and it is obvious from the plaint that it is one for declaration of title, and to set aside the sale of 15th June 1882. Such a suit could only be maintained by showing that the sale was invalid, and hence it is necessary to consider any circumstances rendering the two houses now in suit not subject to the decree in execution of which they were sold. There has been much able argument by the learned Junior Government Pleader upon the question whether the suit is maintainable, and the learned Pandit, on behalf of the respondents, has maintained--what indeed, the Junior Government Pleader conceded--that such a suit would lie under certain circumstances. There are many cases on this subject, referred to in Section 312 of Mr. Justice O'Klnealy's edition of the Civil Procedure Code, which fully go to maintain this proposition of law; and in particular the Full Bench case of Abdul Haye v. Naivab Raj B.L.R. Sup. Vol. 911. I have therefore no doubt that the suit would lie, and is not barred by any plea in limine. And then a two-fold question arises. In the first place, what is the meaning of the decree in execution of which the houses were sold? In interpreting this decree, I must refer to the order of this Court, dated the 6th September 1882, upon which the lower Courts have relied for the purpose of holding that the decree was limited to such rights of the defendant-judgment-debtor in that suit as existed in the property hypothecated in the bond upon which the decree was passed. It is clear to me that that adjudication, being one between the judgment-debtor on the one hand and the decree-holder on the other, and having been subsequent not only to the sale, but to the confirmation of the sale, cannot be binding upon the auction-purchaser, the present appellant. In the next place, my learned brother Tyrrell and I, who passed the order of the 6th September 1882, had before us two questions only which were raised in that case on behalf of the appellant-judgment-debtor, and the respondent-decree-holder was wholly unrepresented, and we were not then called upon to decide anything in relation to questions of the nature of the decree as to costs. I am therefore of opinion that that order cannot now be used against the present appellant.

4. We have now to consider what was the meaning of the decree, and my interpretation of that meaning is the same as that of my learned brother Oldfield, namely, that, in regard to costs, it was a decree made personal against the judgment-debtor: in other words, it conferred a right upon the decree-holder to take out execution for the recovery of those costs, not only against the property hypothecated in the bond which was the basis of the suit, but also against the person and the other property of the judgment-debtor. I limit this observation to the order of the Court in regard to costs. What happened was that a decree was passed having this double aspect, that it was so executed that, not only the hypothecated property but these two houses also were attached,, and in execution they were sold for about Rs. 500, the amount of costs being, over Rs. 1 000. The question then is, whether such attachment and such proclamation of sale and the sale itself were or were not valid? There can be no doubt that if the decree-holder had taken out execution as to costs against the judgment-debtor in respect of the two houses, that would have been valid; and the only doubtful point is whether, the attachment having been made for the whole amount [454] of the decree and not for costs, and no separate, proceedings having taken place in respect of the personal decree against the judgment-debtor, the sale was valid, or ab initio void, or voidable, or ineffectual to convey any proprietary rights to the auction-purchaser-appellant. Now I am anxious to say that I am not prepared to lay down that the method adopted by the decree-holder was necessarily regular or proper for the purpose of executing a decree of this nature. But all that is said against the attachment, against the notification of sale, and against the sale itself, constitutes matters falling under Section 312 of the Civil Procedure Code, which enables parties to object to confirmation of sale. And, therefore, even assuming for the purposes of argument that the sale and the confirmation of sale were subject to the objection of 'material irregularity in publishing or conducting' the sale, within the meaning of Section 311, I should still say that a suit like the present, upon that ground alone, is prohibited by the last part of Section 312. Upon these grounds--the only grounds that can be taken on behalf of the plaintiff-respondent--I am of opinion that this suit should have been dismissed. I therefore concur in the order proposed by my learned brother Olidfield.


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