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Hardwari Lal Vs. Salamat-ullah Khan and - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All147; (1916)ILR38All358
AppellantHardwari Lal
RespondentSalamat-ullah Khan And; Aman-ullah Khan
Excerpt:
civil procedure code (1908), order xxi, rule 90 - sale in execution of a decree--application to set aside a sale by person claiming to be the real owner. - - to say that his interests are affected by that sale might be to pronounce an opinion as to the possibility of his success in the declaratory suit......procedure. the first point taken is that the application under that rule was made by one salamat-ullah khan who was neither the decree-holder nor the judgement-debtor, nor a person otherwise entitled to make any such application. we think this contention must prevail. the decree was one passed against amanat-ullah khan, a son of salamat-ullah khan aforesaid. it was a mortgage decree. a decree absolute was obtained on the 17th of january, 1913, and the sale actually took place on the 20th of march, 1915. in the meantime salamat-ullah khan had filed a suit, on the 9th of march, 1915, asking for a declaration that he was himself the real owner of the property covered by the mortgage and ordered to be sold in execution of the same. this suit is sill pending. the question is whether under.....
Judgment:

Piggott and Walsh, JJ.

1. This is an appeal against an order setting aside a sale under the provisions of Order XXI, Rule 90, of the Code of Civil Procedure. The first point taken is that the application under that rule was made by one Salamat-ullah Khan who was neither the decree-holder nor the judgement-debtor, nor a person otherwise entitled to make any such application. We think this contention must prevail. The decree was one passed against Amanat-ullah Khan, a son of Salamat-ullah Khan aforesaid. It was a mortgage decree. A decree absolute was obtained on the 17th of January, 1913, and the sale actually took place on the 20th of March, 1915. In the meantime Salamat-ullah Khan had filed a suit, on the 9th of March, 1915, asking for a declaration that he was himself the real owner of the property covered by the mortgage and ordered to be sold in execution of the same. This suit is sill pending. The question is whether under these circumstances Salamat-ullah is a person whose interests are affected by the sale, within the meaning of Order XXI, Rule 90, aforesaid. It is of little use to refer to reported cases which turn on the wording of Section 311 of the former Code of Civil Procedure (Act XIV of 1882). There has been a substantial and intentional alteration in the law effected by tile passing of the present Code. Nor is it of much use to refer to cases such as that of Abdul Aziz v. Tafaj-uddin 23 Indian Cases 839, in which the learned Judge has remarked that the expression 'whose interests are affected by the sale' has a wider import and a wider scope than the corresponding expression used in Section 311 of Act XIV of 1882. For certain purposes the phrase used in the present Code may be a wider one, but we have to apply the words to the facts immediately before us. It seems to us that it would be a dangerous proposition to lay down that the interests of Salamat-ullah Khan are affected by the sale held on the 20th of March, 1915, while his declaratory suit was actually pending. To say that his interests are affected by that sale might be to pronounce an opinion as to the possibility of his success in the declaratory suit. If his property has been sold in execution of a decree obtained against his son, and he is not estopped by the provisions of Section 41 of the Transfer of Property Act (Act IV of 1882), from setting up his true title, then the sale is a nullity as against him and cannot affect his interests.

2. If, on the other hand, he has no real interest in the property in suit he should obviously not be permitted to maintain the application under Order XXI, Rule 90. We therefore accept this appeal; set aside the order of the court below, allowing the application of Salamat-ullah Khan, and direct the record to be returned to that court in order that it may proceed to pass all necessary orders confirming the sale and to dispose of the matter in accordance with law. The appellant will get his costs of this appeal.


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