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Behari Lal and ors. Vs. Ganpat Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All1
AppellantBehari Lal and ors.
RespondentGanpat Rai and anr.
Excerpt:
civil procedure code, sections 244, 291 - sale in execution of decree--tender of debt by transferee of property--question for court executing decree--separate suit. - - we think that the current of decisions show that section 244 does not apply to a case like this, and that current of decisions is opposed to the doctrine in the ease cited to us, ramchandra kolatkar v......on the 18th december following musammat gaura sold the property in question to kundan lal. that sale-deed was registered on the 18th february, kundan lal sold the property to the appellants-plaintiffs. that sale-deed was registered. on the 6th january 1885, the respondents-decree-holders put in an application for execution against the property. the 20th february following was fixed for the sale. on the 20th february the appellants, acting under section 291 of the code of civil procedure, presented a petition for leave to pay the judgment-debt and costs into court. that petition was opposed by the respondents, they raising a doubt as to the transfer. the deputy collector referred the case to the court, which seems to have been close by. the application was then made to the court, and.....
Judgment:

Edge, C.J. and Tyrrell, J.

1. In this case the respondents had obtained a decree on a hypothecation bond against Musammat Gaura. They attached her property in execution thereof, but not having paid the proper fees into Court, the Court made an order striking the execution off the list of pending oases. That was on the 17th September 1884. On the 18th December following Musammat Gaura sold the property in question to Kundan Lal. That sale-deed was registered on the 18th February, Kundan Lal sold the property to the appellants-Plaintiffs. That sale-deed was registered. On the 6th January 1885, the respondents-decree-holders put in an application for execution against the property. The 20th February following was fixed for the sale. On the 20th February the appellants, acting under Section 291 of the Code of Civil Procedure, presented a petition for leave to pay the judgment-debt and costs into Court. That petition was opposed by the respondents, they raising a doubt as to the transfer. The Deputy Collector referred the case to the Court, which seems to have been close by. The application was then made to the Court, and was refused. The sale proceeded, and the decree-holders-respondents purchased on the same day. Upon that this suit was brought. The Subordinate Judge dismissed the suit, apparently on the ground that as Musammat Gaura had questioned the sale made by her, the appellants were not persons entitled to have the sale stayed by paying the money into Court. He also held that Section 244 barred the suit. This involved one question of fact and two questions of law. The question of fact was whether Musammat Gaura had sold the property to Kundan Lal. The evidence proved that she did, and had executed the sale-deed of the 18th December 1884. When that deed was registered, she was identified by a person deputed by the Registrar for that purpose from the office. Mr. Gonlan admits that he cannot dispute that the sale did take place. The first question of law is, whether the appellants, who were the assignees who purchased from Kundan Lal, who purchased from Musammat Gaura, were entitled to come in and protect the property by tendering the money under Section 291 of the Code of Civil Procedure. The only right of the decree-holders was to have this debt and costs paid to them, or to have the property sold to satisfy this judgment and costs. It is only as a matter of grace that a decree-holder is allowed to purchase at auction-sale at all. If the debt and costs are paid by a third person on behalf of the debtor, the decree-holder ceases to have any interest in the property, and the money so paid cannot be recovered from him. The judgment-debtor might object to the intervention of a third party, but that is not the present case. Indeed, we are strongly of opinion that if Musammat Gaura had attempted to interfere, the assignees would have been entitled to an injunction against her; and further, we think they would be entitled to use her name in paying the money into Court, because her rights had passed to her vendees. Consequently, we are of the opinion that the executing Court was bound to accept the money and stop the sale.

2. The only other point now remaining is, whether the case is governed by Section 244 or not. We think that the current of decisions show that Section 244 does not apply to a case like this, and that current of decisions is opposed to the doctrine in the ease cited to us, Ramchandra Kolatkar v. Mahadaji Kolatkar I. L. R., 9 Bom., 141. On these grounds we decree the appeal with costs, that is to say, the appellants should have a decree conditioned on payment into Court within thirty days of the judgment-debt and costs as it stood on the 20th February 1885, at the first stage of the sale, minus the costs of this litigation.


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