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Kuar Lakshmiraj Singh and ors. Vs. Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All513
AppellantKuar Lakshmiraj Singh and ors.
RespondentShankar and ors.
Excerpt:
- .....lal purchased the house, and if the house were moveable property the same became absolute under rule 78, rule 21. the lower appellate court has set aside the sale on some inherent power which he says he had under section 151, civil p.c. in my opinion no such inherent power exists in contravention to a definite direction enjoined by statute. if the house were really moveable property the sale would be absolute and no court could set it aside in spite of any injustice that may be done to the judgment-debtors by wrong procedure adopted by the court in omitting to issue notice to the judgment debtors. i hold, however, that the house was immovable property because it had not been detached at that time and the plaintiffs had not executed this decree for recovery of possession of the land by.....
Judgment:

Dalal, J.

1. In my opinion it ia important to determine in this case whether the property sold was moveable or immovable. The decree-holders had sued for recovery of possession of a certain plot of land by removal of the materials of the house of the defendants standing thereon. During the pendency of the appeal here the defendants judgment-debtors deposited costs and rent which had been decreed against them. This Court decided in favour of the plaintiffs whereupon the plaintiffs decree-holders applied at one and the same time for possession of the land for attachment of the house of the defendants in order to recover costs of the first two Courts. No notice was issued as the High Court decree was passed within one year of the application for execution and attachment of the house was ordered. The house was attached on 14th September 1927, and on the same day the decree-holders applied for sale of the house. When this application was filed it was the duty of the Court to take action under E. 66, Order 21 and issue notice to the judgment-debtors. No such notice was issued and sale was promptly ordered and took place on 19th October 1927.

2. Kanhaiya Lal purchased the house, and if the house were moveable property the same became absolute under Rule 78, Rule 21. The lower appellate Court has set aside the sale on some inherent power which he says he had under Section 151, Civil P.C. In my opinion no such inherent power exists in contravention to a definite direction enjoined by statute. If the house were really moveable property the sale would be absolute and no Court could set it aside in spite of any injustice that may be done to the judgment-debtors by wrong procedure adopted by the Court in omitting to issue notice to the judgment debtors. I hold, however, that the house was immovable property because it had not been detached at that time and the plaintiffs had not executed this decree for recovery of possession of the land by removal of the house. If that decree had been executed and materials of the house had been lying on the ground those materials would have been moveable property and could have been sold as such. In the condition in which the house was at the time of the attachment and sale it was immovable property and under Rule 90, Order 21, the sale would not become absolute automatically. If no objection is filed and an objection is filed and disallowed, the Court has to confirm the sale and the sale becomes absolute only on confirmation under Rule 92 in the case of immovable property. The subordinate Courts have therefore acted under Rule 90 in setting aside the sale. They have held that there was material irregularity and fraud in publishing and conducting the sale. They also held that the judgment-debtors have sustained substantial injury by reason of such irregularity and fraud.

3. I agree with their opinion. They had not noticed the irregularity of omission of the issue of a notice to the judgment-debtors under Rule 66. That is an additional cause why the Sale should be held to be invalid by reason of material irregularity in publishing and conducting the sale. The decrees of the two subordinate Courts are correct without the necessity of the exercise of any powers under Section 151, Civil P.C.

4. I dismiss both the appeals and the application for revision with costs.


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