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Kanthi Ram Vs. Bankey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All398
AppellantKanthi Ram
RespondentBankey Lal and ors.
Excerpt:
execution of decree - to set aside sale of immoveable property--auction-purchaser--appeal--act x of 1877 (civil procedure code), sections 311, 312, 313, 588 (m). - - again, if it is part of the court's duty where an objection has been disallowed to confirm the sale as regards the parties to the suit and the purchaser, it is surely a part of the court's duty to hear the purchaser if he appear to answer the judgment-debtor or decree-holder's objection to the sale, and if he be heard in the first court, may he not be heard in the second, and, if so, why not as appellant as well as respondent 2. in this case the judgment-debtor made the objection......any person whose immoveable property has been sold alone may make the application to set aside the sale. the purchaser cannot apply under this section. section 313 provides for the occasion on which he may apply, viz., on the ground that the person whose property purported to be sold had no saleable interest in it. section 588(m) gives an appeal under section 312 for confirming or setting aside a sale. but suppose that the sale in favour of the purchaser has been confirmed, after objection has been disallowed under section 312, and the judgment-debtor appeals to the judge, cannot the purchaser appear in appeal and defend the order made in his favour? it would be very hard if he could not appear. again, if it is part of the court's duty where an objection has been disallowed to confirm.....
Judgment:

Spankie, J.

1. At first sight it appears as if the first plea had force, and that the auction-purchaser was not competent to appeal to the Judge. By Section 311 of Act X of 1877 the decree-holder or any person whose immoveable property has been sold may apply to the Court to set aside the sale on the ground of a material irregularity in publishing or conducting the sale. By Section 312 if no such application be made, or if it be made and the objection should be disallowed, the Court shall confirm the sale as regards the parties and the purchaser. If such application be made, and if it be allowed, the Court shall set aside the sale. Now it is clear that the decree-holder or any person whose immoveable property has been sold alone may make the application to set aside the sale. The purchaser cannot apply under this section. Section 313 provides for the occasion on which he may apply, viz., on the ground that the person whose property purported to be sold had no saleable interest in it. Section 588(m) gives an appeal under Section 312 for confirming or setting aside a sale. But suppose that the sale in favour of the purchaser has been confirmed, after objection has been disallowed under Section 312, and the judgment-debtor appeals to the Judge, cannot the purchaser appear in appeal and defend the order made in his favour? It would be very hard if he could not appear. Again, if it is part of the Court's duty where an objection has been disallowed to confirm the sale as regards the parties to the suit and the purchaser, it is surely a part of the Court's duty to hear the purchaser if he appear to answer the judgment-debtor or decree-holder's objection to the sale, and if he be heard in the first Court, may he not be heard in the second, and, if so, why not as appellant as well as respondent

2. In this case the judgment-debtor made the objection. The auction-purchaser put in a statement refuting the grounds upon which the objection was made. The statement was admitted by the Court, and he was allowed to examine four witnesses. The order of the Court was against him. An appeal is allowed by law, and he appeared before the Judge as appellant. We can find no illegality in the Court's entertainment of this appeal on the merits, in that we hold that, though the auction-purchaser may not be the applicant under Section 311, he yet may be a party to the proceedings after the application has been made, and then if there is an order against him he can appeal under letter m, Section 588 of the Code.


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