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Dhani Ram Vs. Chaturbhuj and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All86
AppellantDhani Ram
RespondentChaturbhuj and anr.
Excerpt:
.....- execution of decree--questions for the court executing the decree--sale in execution--suit by decree-holder and judgment-debtor against auction purchaser to set aside sale alleging an uncertified adjustment of the decree prior to the sale. - - on that date the son of the decree-holder presented an application to the officer conducting the sale, asking him to stay the sale on the ground that the decree had been satisfied. in my judgment the suit is clearly barred by section 244. the case is, in my opinion, governed by the decision of the full bench of this court in basti ram v. ' these remarks in my judgment apply clearly to the present case. a purchaser at an auction sale held in execution of a decree is entitled to take it for granted that questions as to whether the decree under.....blair, j.1. the plaintiffs' suit, out of which this second appeal arises, is a suit by a decree-holder and a judgment-debtor as plaintiffs against an auction-purchaser at a sale in execution of a decree in which the plaintiffs occupied the position i have mentioned on the ground that an adjustment had been arrived at between them before sale. the court of first instance dismissed the suit of the plaintiffs, applying the provisions of section 244 of the code of civil procedure. the appellate court reversed that decision and remanded the case under section 562 of the code of civil procedure for decision upon the merits. it is against that order of remand that the present appeal is brought. the ground taken by pandit sundar lal, who appears for the appellant, is that the court of first.....
Judgment:

Blair, J.

1. The plaintiffs' suit, out of which this second appeal arises, is a suit by a decree-holder and a judgment-debtor as plaintiffs against an auction-purchaser at a sale in execution of a decree in which the plaintiffs occupied the position I have mentioned on the ground that an adjustment had been arrived at between them before sale. The Court of First Instance dismissed the suit of the plaintiffs, applying the provisions of Section 244 of the Code of Civil Procedure. The appellate Court reversed that decision and remanded the case under Section 562 of the Code of Civil Procedure for decision upon the merits. It is against that order of remand that the present appeal is brought. The ground taken by Pandit Sundar Lal, who appears for the appellant, is that the Court of First Instance was right in applying Section 244 as a bar to this suit. That practically is the substantial ground of appeal. The fact alleged is, that the plaintiffs had really effected an adjustment, which, if duly certified to and sanctioned by the executing Court, would have put an end to the suit in the execution proceedings. It was manifestly the duty of the decree-holder under Section 258 of the Code of Civil Procedure to certify such adjustment. It was open to the judgment-debtor, upon the decree-holder failing to perform that duty, to protect himself from the further execution of the decree by himself certifying to the Court the fact of such adjustment, whereupon due notice would have been given to the decree-holder to show cause why the adjustment should not be recorded as certified. As a matter of fact neither party took the course which is imposed upon one, and, in case of his default, is allowed to the other by that section. The consequence was that the sale proceeded and the defendant became a purchaser. It is now sought to set aside that sale. Apart altogether from authorities to which I am bound to conform, it does seem contrary to elementary principles of right and justice to allow two persons, either of whom could have prevented the sale, to put their hands in their pockets till the sale was over, and then to proceed against an innocent auction purchaser by suit in order to set aside the sale which ought never to have taken place. However, we have abundant authority in the Full Bench decision of this Court in Basti Ram v. Fattu (1886) I.L.R. 8 All, 146, and the decision of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Cal. 683. The only distinction that appears to us which could possibly be urged between this case and those that have been decided is that the sole defendant here is the auction purchaser, and it has been contended before us that upon that fact the provisions of Clause (c) of Section 244 of the Code of Civil Procedure do not apply. In my opinion the question as to the fact and propriety of this adjustment did arise between the parties to the suit in which the decree was passed, and ought to have been by them decided in the executing Court as provided for by Section 244. I would allow this appeal, and, setting aside the order of remand by the Court below, restore with costs the decree of the Court of First Instance.

Aikman, J.

2. I am of the same opinion. The suit out of which this appeal arises was brought to set aside an auction sale held in execution of a decree on a mortgage. The plaintiffs are the decree-holder and the judgment-debtor in the mortgage suit. The defendant, who is the appellant here, is the auction purchaser of the mortgaged property. It appears from the statement of facts that on the 10th of March 1898, the decree-holder and the judgment-debtor in the mortgage suit entered into an arrangement, whereby the judgment-debtor executed a fresh mortgage in favour of the decree-holder in adjustment of the decree which the latter had obtained upon the previous mortgage. Neither of the parties took any steps to have this adjustment certified to the Court, whose duty it was to execute the decree. For anything we know to the contrary, the agreement entered into between the decree-holder and the judgment-debtor may have come within the provisions of the second paragraph of Section 257A of the Code of Civil Procedure, and may have required the sanction of the Court. The 21st of March 1898 was the date fixed for the sale which, under the provisions of Section 320 of the Code of Civil Procedure, had been transferred to the Collector. On that date the son of the decree-holder presented an application to the officer conducting the sale, asking him to stay the sale on the ground that the decree had been satisfied. That officer refused the prayer of the applicant. The property was sold, and was purchased by the appellant before us. The judgment-debtor applied under Section 311 of the Code of Civil Procedure to have the sale set aside. That application was refused, and no appeal was preferred against the order of refusal. The Court of First Instance held that the present suit was barred by the provisions of Section 244 of the Code, and on that ground dismissed it. On appeal the learned District Judge came to the conclusion that Section 244 did not apply to the case, set aside the decree of dismissal, and remanded the suit for decision on the merits. The defendant appeals against this order of remand, contending that the decision of the first Court was right. In my judgment the suit is clearly barred by Section 244. The case is, in my opinion, governed by the decision of the Full Bench of this Court in Basti Ram v. Fattu (1886) I.L.R. 8. All. 146. That was a case in which a judgment-debtor, whose property had been sold in execution of a decree, brought a suit against the auction purchaser to have the sale set aside on the ground that the property, an occupancy tenure, could not be sold in execution. The Full Bench held that the provisions of Section 244 disallowing a separate suit to determine questions arising between the parties to the suit in which a decree had been passed and bearing upon the execution, discharge or satisfaction of the decree, or stay of the execution thereof, operated not only to prohibit a suit between the parties and their representatives, but also a suit by a party or his representative against an auction purchaser in execution of the decree, the object of which suit is to determine a question which properly arose between the parties or their representatives relating to execution, discharge or satisfaction of the decree. If the question be of this nature in this suit it is one which by Section 244 must be determined by order of the Court executing the decree and not by a separate suit, and it is immaterial whether the party did or did not raise it prior to the auction sale in execution proceedings. If he did not, ' suit is not the remedy which the Legislature has provided.' These remarks in my judgment apply clearly to the present case. A purchaser at an auction sale held in execution of a decree is entitled to take it for granted that questions as to whether the decree under execution is or is not barred by limitation, as to whether the property advertised for sale is or is not saleable under the decree, and as to whether the decree has or has not been satisfied, have been decided by the Court executing the decree. If a suit like the present were held to be maintainable against an auction purchaser, it would have a most injurious effect upon auction sales. If parties will not adopt the course provided by law for deciding whether a decree has or has not been satisfied, they cannot take advantage of their own laches and neglect of the law to harass an innocent auction purchaser. I concur in the order proposed.


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