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Gajrajmati TeoraIn and ors. Vs. Akbar HussaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All196
AppellantGajrajmati TeoraIn and ors.
RespondentAkbar HussaIn and ors.
Excerpt:
sale in execution of decree - material irregularity in conduct of sale--no proof of substantial injury--postponement of sale--order staying sale withdrawn and sale held without issue of fresh proclamation--civil procedure code (act xiv of 1882), sections 290, 291, 244 and 311, 312. - - 6. the order committing the sale to the collector of basti is not in evidence, nor docs it appear clearly in what capacity the collector sold, or on what grounds the order staying the sale was made, or on what grounds it was revoked, or whether any notice was ever given to the public that the sale had been stayed, and that the case was for a time struck off the pending file. 9. their lordships are of opinion that the decision of the high court is perfectly right......j.1. this is an appeal from a decree of the high court at allahabad, reversing the decree of the subordinate judge, and dismissing, with costs, a regular suit brought for the purpose of annulling a sale in execution proceedings.2. the sale was held under a decree of the subordinate judge of gorakhpur by the collector of basti. the sale proclamation was duly issued. the sale was fixed for the 20th of february 1897. it was held on the 23rd, but before the collector had finished the sales listed for the 20th.3. it appears that an order was made ex parte on the 11th of february 1897 by the subordinate judge of gorakhpur staying the sale. on the 16th of february the collector of basti, in obedience to this order, struck the proceedings off the pending file. however, on the 22nd, in.....
Judgment:

Macnaghten, J.

1. This is an appeal from a decree of the High Court at Allahabad, reversing the decree of the Subordinate Judge, and dismissing, with costs, a regular suit brought for the purpose of annulling a sale in execution proceedings.

2. The sale was held under a decree of the Subordinate Judge of Gorakhpur by the Collector of Basti. The sale proclamation was duly issued. The sale was fixed for the 20th of February 1897. It was held on the 23rd, but before the Collector had finished the sales listed for the 20th.

3. It appears that an order was made ex parte on the 11th of February 1897 by the Subordinate Judge of Gorakhpur staying the sale. On the 16th of February the Collector of Basti, in obedience to this order, struck the proceedings off the pending file. However, on the 22nd, in consequence of notice received from the Court of the Subordinate Judge, from which it appeared that the order staying the sale had been set aside, the case was then brought forward, as the Collector notes, 'in continuation of the sale proceedings in other cases.' The sale was commenced, but adjourned till the following day. On the 23rd the decree-holders, who had leave to bid, purchased at the auction the interest of the judgment-debtors, and the sale was concluded in their favour subject to confirmation by the Civil Court.

4. On the application for confirmation the judgment-debtors applied to have the sale annulled. The Subordinate Judge confirmed the sale, finding that, although there were irregularities in the conduct of the sale, the judgment-debtors had not sustained any damage. On appeal the High Court at Allahabad confirmed the decision of the Subordinate Judge.

5. Then the judgment-debtors brought this suit.

6. The order committing the sale to the Collector of Basti is not in evidence, nor docs it appear clearly in what capacity the Collector sold, or on what grounds the order staying the sale was made, or on what grounds it was revoked, or whether any notice was ever given to the public that the sale had been stayed, and that the case was for a time struck off the pending file. It appears, however, to have been assumed in the present litigation, and their Lordships assume for the purpose of their judgment, that the case came within Section 291 of the Code of Civil Procedure, and that when the stay of proceedings was removed, a fresh proclamation ought to have been issued in compliance with the terms of that section.

7. The Subordinate Judge held that, inasmuch as no fresh proclamation was issued, the sale was void, and therefore he pronounced a decree in favour of the judgment-debtors.

8. The Court of appeal, assuming that a fresh proclamation ought to have been issued, held that the omission was an irregularity which had involved no loss to the debtor; that the only course open to the judgment-debtors was to object, as they did, to the confirmation of the sale, and that it was not competent for them to impeach the sale by regular suit.

9. Their Lordships are of opinion that the decision of the High Court is perfectly right. The provisions of the Code of Civil Procedure are, in their opinion, clear on the point.

10. Their Lordships will, therefore, humbly advise his Majesty that the appeal ought to be dismissed. The appellants will pay the costs of the appeal.


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