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Syed Ibne Hasan Vs. DIn Dayal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All449a
AppellantSyed Ibne Hasan
RespondentDIn Dayal and anr.
Excerpt:
- - this ruling is clearly applicable to the facts of the case. the decision referred to above is clearly applicable to the facts of the case. the application for setting aside the sale was clearly entertainable by the munsif. assuming that there has been an error of judgment on his part in rejecting the application, it could not be said that the munsif had exercised a jurisdiction which was not vested in him in law or had failed to exercise jurisdiction or had been guilty of irregularity in the exercise of jurisdiction in a way so as to affect the merits of the case......under order 21, rule 89, civil p.c., on 12th november 1929 and applied to have the sale set aside. ibne hasan appeared on the scene on 14th december 1929. both siraj ahmad and ibne hasan filed affidavits tot he effect that the deposit made by siraj ahmad was on account of the judgment-debtor, viz., ibne hasan. the auction-purchaser contested the claim on the ground that no valid deposit having been made by the judgment-debtor or by an authorized agent on his behalf within the statutory period of limitation, the sale was not open to avoidance. the learned munsif acceded to this contention and dismissed the application: hence this application for revision under section 115, civil p.c.2. it has been held by this court in sarvi begum v. haidar shah [1912] 13 i.c. 404 that a tender by a.....
Judgment:

Sen, J.

1. The property belonging to the applicant was sold in execution of a decree on 21st October 1929. One Siraj Ahmad, who did not hold any special or general power-of-attorney from the applicant, deposited the decretal amount and other costs under Order 21, Rule 89, Civil P.C., on 12th November 1929 and applied to have the sale set aside. Ibne Hasan appeared on the scene on 14th December 1929. Both Siraj Ahmad and Ibne Hasan filed affidavits tot he effect that the deposit made by Siraj Ahmad was on account of the judgment-debtor, viz., Ibne Hasan. The auction-purchaser contested the claim on the ground that no valid deposit having been made by the judgment-debtor or by an authorized agent on his behalf within the statutory period of limitation, the sale was not open to avoidance. The learned Munsif acceded to this contention and dismissed the application: hence this application for revision under Section 115, Civil P.C.

2. It has been held by this Court in Sarvi Begum v. Haidar Shah [1912] 13 I.C. 404 that a tender by a person who was neither an attorney general or special, nor a vakil or mukhtar for the owner of immovable property sold does not comply with the provisions of Order 21, Rule 89, Civil P.C., and is consequently invalid. This ruling is clearly applicable to the facts of the case. It has been contended that Siraj Ahmad looks after the zamindari property belonging to Ibne Hasan within the jurisdiction of the Munsif of Moradabad and must be taken to be a recognized' agent of Ibne Hasan within the meaning of Order 3, Rule 2, Sub-clause (3), Civil P.C. A person looking after the zamindari property of the judgment-debtor from time to time is not a person carrying on trade or business for a party who is not a resident within the local limits of the jurisdiction of the Court. The decision referred to above is clearly applicable to the facts of the case. But oven assuming that the Munsif had erred in dismissing the application by relying upon the abovementioned ruling, no facts have been brought out to attract the operation of Section 115, Civil P.C. The application for setting aside the sale was clearly entertainable by the Munsif. Assuming that there has been an error of judgment on his part in rejecting the application, it could not be said that the Munsif had exercised a jurisdiction which was not vested in him in law or had failed to exercise jurisdiction or had been guilty of irregularity in the exercise of jurisdiction in a way so as to affect the merits of the case. I dismiss this application with costs.


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