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Tota Ram Vs. Khub Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All253
AppellantTota Ram
RespondentKhub Chand
Excerpt:
execution of decree - sale in execution--order disallowing objections to sale--order confirming sale--appeal--civil procedure code, sections 311, 312, 313, 314, 588(16). - .....to the full bench, i wish to explain the reasons which led to the reference. section 311 of the civil procedure code provides for cases in which either 'the decree-holder, or any person whose immoveable property has been sold' in execution of decree, may apply to the court, raising objections to the sale, and praying that it may be set aside. section 312 confers the power upon the court either to reject the application, in which case the sale is confirmed, or to allow the objections, and to set aside the sale. then comes section 313, which provides for cases in which the purchaser is also entitled to pray for setting aside the sale, and the same section empowers the court to grant or reject the application. section 314 says that 'no sale of immoveable property in execution of a decree.....
Judgment:

W. Comer Petheram, C.J.

1. My answer to the question referred to us as amended is in the affirmative.

Oldfield, Brodhurst and Duthoit, JJ.

2. concurred.

Mahmood, J.

3. I am of the same opinion as the learned Chief Justice; but as one of the Judges who referred the matter to the Full Bench, I wish to explain the reasons which led to the reference. Section 311 of the Civil Procedure Code provides for cases in which either 'the decree-holder, or any person whose immoveable property has been sold' in execution of decree, may apply to the Court, raising objections to the sale, and praying that it may be set aside. Section 312 confers the power upon the Court either to reject the application, in which case the sale is confirmed, or to allow the objections, and to set aside the sale. Then comes Section 313, which provides for cases in which the purchaser is also entitled to pray for setting aside the sale, and the same section empowers the Court to grant or reject the application. Section 314 says that 'no sale of immoveable property in execution of a decree shall become absolute until it has been confirmed by the Court.'

4. Now, reading these sections together, it would seem that the most convenient course for the Court would be to dispose of all objections to the sale in one and the same proceeding, and to confirm the sale by the same order, if all the objections have been rejected. But the usual practice of the Courts in the Mufassal is to take up the objections, whether they are raised by the decree-holder, the judgment-debtor, or the auction-purchaser, and to dispose of them separately, and afterwards to pass an order confirming the sale, if the objections have already been disallowed. There are two rulings of this Court--Lalman v. Rassu Lal Weekly Notes 1882 p. 117 --and Ratan Kuar v. Lalta Prasad Weekly Notes 1883 p. 178 --in which it has been held that an order disallowing objections to a sale was not an order under the first paragraph of a. 312, so as to make it appealable under Clause (16) of Section 588, Civil Procedure Code, and that the only order appealable was that which confirmed the sale, within the meaning of Section 312 of the Code. The accuracy of these two rulings was doubted by me in the unreported case of Baldeo Singh v. Azimunnisesa Bibi First Appeal from Order No. 1 of 1884 which was disposed of on the 10th June last, but the exigencies of that case did not require my passing a dissentient order.

5. In the present case the question arose because the appeal has been preferred, not from an order confirming the sale under Section 312, but from an order disallowing objections to the sale; so that if the two rulings of this Court to which I have referred were to be adopted, the appeal would not lie under Clause (16) of Section 588 of the Code. This was the reason why the question was referred to the Full Bench.

6. With due respect to the two rulings of this Court to which I have referred, I am unable to agree in the rule therein laid down. I am of opinion that an application made under Section 311 can be disposed of only under Section 312, and if the Court rejects the objection to the sale, the order must be regarded as an order 'refusing to set aside a sale of immoveable property' under the first paragraph of Section 312, and therefore appealable as falling under the purview of Clause (16) of Section 588 of the Civil Procedure Code.


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