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Jasoda Vs. Mathura Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All511
AppellantJasoda
RespondentMathura Das and ors.
Excerpt:
.....in publishing or conducting sale--substantial injury--notification omitting to state place of sale--sale held after date advertized--civil procedure, code sections 287, 290. - - the rule of construction under such circumstances would render the two clauses independent of each other for the decision of the point now before us, and i think an argument might well be addressed in support of a contention that 'material irregularity' is, ipso facto, fatal to a sale. the question in this form does not really arise because, as the learned chief justice has said, it is impossible for us as a court of first appeal, dealing with facts as well as law, to hold, as a question of fact, that a sale held under such conditions as the sale in this case, ever resulted otherwise than in a substantial..........on the 29th july, and before the expiration of the thirty days requited by section 290 of the code of civil procedure. it is contended that no substantial damage resulted from these irregularities. i cannot believe that injury was not done by omitting from the notification the name of the place of sale and by holding the sale on a date subsequent to the date advertized. the non-compliance with the provisions of sections 287 and 290 of the coda of civil procedure was more than an irregularity. i am of opinion that the munsif ought not to have confirmed the sale. i am of opinion that this appeal must be allowed and the order set aside. i thoroughly agree with the judgment reported in the case of bakhsin nand kishore v. malik chand i. l. r., 7 all., 289.mahmood, j.2. i agree with the.....
Judgment:

John Edge, Kt., C.J.

1. This is an appeal from an order of the Munsif of Gorakhpur, confirming a sale of immoveable property. The notification of sale was put up in the Court-house on the 30th June 1886. That notification did not state the place of sale; it state that the sale would take place on the 27th July, but it took place on the 29th July, and before the expiration of the thirty days requited by Section 290 of the Code of Civil Procedure. It is contended that no substantial damage resulted from these irregularities. I cannot believe that injury was not done by omitting from the notification the name of the place of sale and by holding the sale on a date subsequent to the date advertized. The non-compliance with the provisions of Sections 287 and 290 of the Coda of Civil Procedure was more than an irregularity. I am of opinion that the Munsif ought not to have confirmed the sale. I am of opinion that this appeal must be allowed and the order set aside. I thoroughly agree with the judgment reported in the case of Bakhsin Nand Kishore v. Malik Chand I. L. R., 7 All., 289.

Mahmood, J.

2. I agree with the learned Chief Justice, but as I was a party to the judgment which has been referred to by him, I wish to add that this is not the first occasion upon which I have entertained serious doubts as to the question whether material irregularities, such as those found in this case, are not in themselves sufficient, within the meaning of the first paragraph of Section 311 of the Code of Civil Procedure, to justify a Court in setting aside a sale without inquiring whether such 'material irregularity' had resulted in substantial injury within the meaning of the second paragraph of the section. I am inclined to hold that the presence of 'material' before the word 'irregularity' in the former paragraph of the section, and the absence of that word id the latter paragraph of the section, would so far sustain the view I have indicated, especially because the second paragraph of the section does not appear in the Code in the form of a proviso governing the earlier paragraph, but as a separate clause beginning with a disjunctive word. The rule of construction under such circumstances would render the two clauses independent of each other for the decision of the point now before us, and I think an argument might well be addressed in support of a contention that 'material irregularity' is, ipso facto, fatal to a sale. I only wish to add on this point, with reference to the judgment of Mr. Justice Oldfield in the case above referred to, that I concurred without expressing any definite opinion whether a sale that infringes the rule of thirty days provided by Section 290 would not in itself be a sale subject to such a material irregularity as the earlier part of Section 311 contemplated. I have considered it necessary to say this with reference to the argument insisted upon before us on behalf of the respondent. The question in this form does not really arise because, as the learned Chief Justice has said, it is impossible for us as a Court of first appeal, dealing with facts as well as law, to hold, as a question of fact, that a sale held under such conditions as the sale in this case, ever resulted otherwise than in a substantial injury to the judgment-debtor within the meaning of the last part of Section 311 of the Code of Civil Procedure. I concur with the learned Chief Justice.


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