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Harbans Lal Vs. Kundan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All140
AppellantHarbans Lal
RespondentKundan Lal and ors.
Excerpt:
.....there had been an irregularity in publication, but it also distinctly found that no loss had accrued to the applicant by reason of the irregularity. it was, however, contended by the learned vakil for the opposite party that there were a number of rulings, which he proceeded to lay before us, in which this court had held that where the question complained of was not a mere irregularity, but an illegality, courts had jurisdiction, under section 311 of the code of civil procedure, to set aside a sale, even though it had not been proved that substantial loss had resulted to the applicant by reason of such irregularity. he cannot come into court upon these allegations, and when he has failed, as in the present case, to make them out, then ask the court to pray in aid some further ground..........the irregularities complained of established, or, if it does not find this, it must pass an order confirming the sale. we accordingly reverse the orders setting aside the sale, and direct that the sale held on the 22nd of september 1897 be confirmed. the petitioner will get his costs throughout.
Judgment:

Knox, Actg. C.J. and Dillon, J.

1. On the 22nd of September 1897, certain property, the property of the judgment-debtor Kundan Lal, was sold by auction in execution of a decree held by Harbans Lal. After the sale had been held the judgment-debtor put in an application which he termed an application under Section 311 of the Code of Civil Procedure. He alleged that no sale notification had been issued and no proclamation duly and properly made; that owing to these irregularities he had sustained great loss, and he asked that the sale might be set aside. The Court found that there had been an irregularity in publication, but it also distinctly found that no loss had accrued to the applicant by reason of the irregularity. Having so found, the course which the Court should have taken, in our opinion, was, that it should have disallowed the objections and passed an order confirming the sale. So far as we can see, Section 312 of the Code of Civil Procedure gave the Court no other alternative. Instead, however, of so acting, the Court came to the conclusion, it does not appear at whose instance or on whose application, that there had been no sale, as there had been no attachment of the property sold, and it proceeded to set aside the sale. On appeal the learned Judge took the same view and confirmed the order of the Court of First Instance setting aside the sale. We are asked in revision to hold that as no irregularities in the conducting or publishing of the sale had been found and as the judgment-debtor had sustained no injury, the Court had (and here we must have recourse, not to the petition, but to the argument before us) no jurisdiction to set aside the sale on an application under Section 311 of the Code of Civil Procedure. This contention is undoubtedly supported by a ruling of this Court in the case of Shirin Begam v. Agha Ali Khan (1895) I.L.R. 18 All. 141, a case which can in no way be distinguished from the present. It was, however, contended by the learned vakil for the opposite party that there were a number of rulings, which he proceeded to lay before us, in which this Court had held that where the question complained of was not a mere irregularity, but an illegality, Courts had jurisdiction, under Section 311 of the Code of Civil Procedure, to set aside a sale, even though it had not been proved that substantial loss had resulted to the applicant by reason of such irregularity. Those cases were Mahadeo. Dubey v. Bhola Nath Dichit (1882) I.L.R. 5 All. 86; Jasoda v. Mathura Das (1887) I.L.R. 9 All. 511; Raghu Nath Das v. Raj Kumar (1885) I.L.R. 7 All. 876; Ganga Prasad v. Jag Lal Rai (1889) I.L.R. 11 All. 333; Sant Lal v. Umrao-un-nisa (1889) I.L.R. 12 All. 96; he also referred us to the case of Mohendro Narain Chaturaj v. Gopal Mondul (1890) I.L.R. 17 Cal. 769. With reference to all these cases one remark applies, namely, that they were all decided before the case of Tassaduk Rasul Khan v. Ahmad Husain (1893) L.R. 20 I.A. 176, in which their Lordships of the Privy Council ruled very positively as to the object and purport of Section 311 of the Code of Civil Procedure. We find nothing in Section 311 which allows a Court to go into any question over and above that of material irregularity in the publication, and conduct of the sale. Before the Court can set aside a sale under Section 311, the applicant must prove a material irregularity and substantial injury sustained thereby. He cannot come into Court upon these allegations, and when he has failed, as in the present case, to make them out, then ask the Court to pray in aid some further ground which he considers would entitle him to the relief asked for, and, as was pointed out before, the Court cannot do this of its own motion. When put in motion under Section 311, it must either find the irregularities complained of established, or, if it does not find this, it must pass an order confirming the sale. We accordingly reverse the orders setting aside the sale, and direct that the sale held on the 22nd of September 1897 be confirmed. The petitioner will get his costs throughout.


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