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Murli Dhar Vs. Ram Gopal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All667
AppellantMurli Dhar
RespondentRam Gopal
Excerpt:
- - he failed to deposit the whole amount and the property had to be resold on 12th may 1921 at a loss. that error of law must result either in a failure to exercise jurisdiction or wrong exercise of jurisdiction or any irregularity in the exercise of jurisdiction before the high court can interfere under section 115, civil p. this is an obvious error of law but it is difficult to say that it amounted to a failure on the part of the subordinate judge to exercise jurisdiction......in revision from an order refusing to recover the amount of the deficiency on resale from the auction-purchaser. the property was sold at auction and purchased by ram gopal respondent. he failed to deposit the whole amount and the property had to be resold on 12th may 1921 at a loss. the court at the instance of one of the decree-holders nand kishore passed an order on 14th september 1928 holding that the auction-purchaser was liable for the loss. as that order had been passed at the instance of nand kishore it did not expressly mention the judgment-debtor murli dhar's name. nothing was done to recover the amount from the auction-purchaser for a long time during which the decree-holders ultimately succeeded in realizing the entire decretal amount from the judgment-debtor. on 15th.....
Judgment:

Suiaiman, Ag. C.J.

1. This is an application in revision from an order refusing to recover the amount of the deficiency on resale from the auction-purchaser. The property was sold at auction and purchased by Ram Gopal respondent. He failed to deposit the whole amount and the property had to be resold on 12th May 1921 at a loss. The Court at the instance of one of the decree-holders Nand Kishore passed an order on 14th September 1928 holding that the auction-purchaser was liable for the loss. As that order had been passed at the instance of Nand Kishore it did not expressly mention the judgment-debtor Murli Dhar's name. Nothing was done to recover the amount from the auction-purchaser for a long time during which the decree-holders ultimately succeeded in realizing the entire decretal amount from the judgment-debtor. On 15th October 1929 the judgment-debtor filed an application in the Court for execution of the order against the former auction-purchaser Ram Gopal.

2. The learned Judge thought that if the application had been made within three years of the resale, he would have treated this as an application under Order 21, Rule 71, for making the defaulting auction-purchaser liable for the loss, but as it was more than three years after the resale he could not treat it as such an application. He then considered that the order of 14th September 1926, having been passed at the instance of Nand Kishore and not being in favour of the judgment debtor Murli Dhar, the latter had no right to execute it and the learned Judge was unable to, allow his application, which was accordingly dismissed.

3. It is quite clear that a mere error of law howsoever gross would not in itself (be sufficient for interference in revision. That error of law must result either in a failure to exercise jurisdiction or wrong exercise of jurisdiction or any irregularity in the exercise of jurisdiction before the High Court can interfere under Section 115, Civil P.C.

4. There is no doubt that the learned Judge has erred in law in thinking that the judgment-debtor ought to have procured an order in his own name. Under Section 71 the order against an auction-purchaser can be made at the instance of either the decree-holder or judgment-debtor and when once such an order has been made the latter can recover the difference in the price from the auction-purchaser. The rule does not require' that the order should in so many terms state that it is passed against the auction-purchaser and in favour of the judgment-debtor. As things have happened the decree-holders got their money and were therefore not interested in the recovery of this amount. It is only the judgment-debtor who is entitled to recover it.

5. On the other hand the learned Judge did entertain the application made by the judgment-debtor but wrongly thought that he was not entitled to any relief because the order was not in his favour expressly. This is an obvious error of law but it is difficult to say that it amounted to a failure on the part of the Subordinate Judge to exercise jurisdiction. The remedy of the judgment debtor, if any, may be by way of an; application for review of that order. We however do not wish to express any opinion on this question. We think no; revision lies. The application is dismissed but without any order as to, costs.


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