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Mulchand Vs. Mukta Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All83
AppellantMulchand
RespondentMukta Prasad
Excerpt:
execution of decree - sale in execution pending appeal from decree--application for confirmation of sale after reversal of decree--court not competent to grant confirmation--civil procedure code, section 312. - - the civil procedure code contemplates that, before a sale shall become absolute for the purpose of laying the foundation for the grant of a sale certificate, it must be confirmed, that is to say, the court executing the decree must be satisfied before confirming not only that the sale was a good sale in advertence to the language of section 311 of the code, but that there was before him a subsisting decree with the execution of which he ought to proceed by granting confirmation......of a sale which took place on the 10th august 1886. i have not before me the date of the decree in execution of which the sale was held, whereat the respondent decree-holder purchased; but it is sufficient for the purposes of this case to state that the sale of the 10th august 1886, took place while an appeal from that decree was pending in this court, which appeal was heard on the 5th november 1886, and the result of that appeal was that the decree obtained by the respondent against the appellant was reversed and his suit was dismissed. the decree-holder, notwithstanding this dismissal of his suit in appeal, on the 20th march 1887, applied for confirmation of the sale at which he had purchased on the 10th august 1886, and that confirmation has been granted by the munsif.2. it.....
Judgment:

Straight, J.

1. This appeal relates to an application made to the Munsif of Cawnpore for confirmation of a sale which took place on the 10th August 1886. I have not before me the date of the decree in execution of which the sale was held, whereat the respondent decree-holder purchased; but it is sufficient for the purposes of this case to state that the sale of the 10th August 1886, took place while an appeal from that decree was pending in this Court, which appeal was heard on the 5th November 1886, and the result of that appeal was that the decree obtained by the respondent against the appellant was reversed and his suit Was dismissed. The decree-holder, notwithstanding this dismissal of his suit in appeal, on the 20th March 1887, applied for confirmation of the sale at which he had purchased on the 10th August 1886, and that confirmation has been granted by the Munsif.

2. It is from that order of the Munsif that the appeal is now preferred, and the single and simple position taken up for the judgment-debtor is that the Munsif should not have confirmed the sale, because, the decree having been set aside before application had been made for confirmation of the sale, the warrant for the sale was at an end.

3. I have no doubt that this is a sound contention. The Civil Procedure Code contemplates that, before a sale shall become absolute for the purpose of laying the foundation for the grant of a sale certificate, it must be confirmed, that is to say, the Court executing the decree must be satisfied before confirming not only that the sale was a good sale in advertence to the language of Section 311 of the Code, but that there was before him a subsisting decree with the execution of which he ought to proceed by granting confirmation. In the present instance the Munsif had direct notice on the 30th March 1887, when he made the order the subject of this appeal, that the decree in execution of which the sale of the 10th August 1886 had taken place had been set aside. I do not think that a Court executing a decree ought to make an order under such circumstance confirming a sale.

4. This view of the matter is borne out and supported by a ruling of the Bombay High Court, Basappa bin Malappa Aki v. Dundaya bin Shivlingaya I. L. R., 2 Bom., 540, which is directly in point to the facts of the persent case, and with the reasoning contained in the judgment of the learned Judge who determined that case I entirely agree; and adopting his view, I decree this appeal with costs, and setting aside the order of the Munsif, direct that the application for confirmation of the sale of the 10th March 1886, be dismissed with costs.

Brodhurst, J.

5. I concur.


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