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Muhammad Najib-ullah Vs. Jai NaraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All529
AppellantMuhammad Najib-ullah
RespondentJai NaraIn and anr.
Excerpt:
case note: execution of decree - sale in execution--failure of judgment-debtor's title--suit for refund of purchase money--procedure - - apart from these decisions we should have some difficulty in holding that a suit like the present can be maintained. it is obviously most inconvenient, after the sale had taken place, that the auction purchaser should be entitled to come in and allege that the sale was bad on the ground of a defect in the debtor's title. it may well have been that the money realised by the sale of the property has been distributed amongst a number of creditors. that case, like the present, was a suit to recover back purchase money on the ground of defect in the judgment-debtor's title......full bench decision above referred to. we as a bench, feel ourselves bound by the decision of the full bench ruling in the case of munna singh v. gajadhar singh (1883) i.l. r. 5 all. 577. before deciding whether we will refer the case to a larger bench or finally decide the appeal, we think it desirable to refer an issue as to the interest of the judgment-debtor at the time of the sale. we accordingly refer the following issue: 'had the judgment-debtor any saleable interest in the property at the date of the sale?' in deciding this issue the court will not necessarily be bound to hold merely on proof of the sale deeds that the judgment-debtor had no saleable interest, because, if it should appear that the judgment-debtor was in possession or had acquired a title in any other way, he.....
Judgment:

Richards, C.J. and Tudball J.

1. This appeal arises out of suit brought under the following circumstances. On the 14th of October, 1887, a mortgage was executed by Chattar Singh, the defendant No. 2, in favour of Ram Saran Das, father of the defendant Jai Narain. A decree was obtained on foot of this mortgage in the year 1892. Certain property was sold in execution of that decree on the 26th of November, 1910, and purchased by the plaintiff. How it was that the decree remained under execution for this protracted period is not explained. The sale was confirmed and plaintiff was put into formal possession. He then alleges that he applied for mutation, when it appeared from a report of the Kanungo that Chattar Singh had already sold the property under two sale deeds, dated respectively the 17th of September, 1880, and the 23rd of June, 1886. Mutation was refused and thereupon the present suit was instituted. It is not shown that the plaintiff was in any way opposed by the vendees under the two sale deeds or their representatives. Various pleas were taken. It was alleged that the judgment-debtor had 'a saleable interest' and it was contended that the suit did not lie. The court of first instance found that the judgment-debtor had no saleable interest and the suit lay and granted the plaintiff a decree. Upon what ground the court of first instance came to the conclusion that the judgment-debtor had no saleable interest does not appear from the judgment beyond the fact that the two sale deeds were proved. The defendant No. 1, Jai Narain, appealed, and the lower appellate court allowed the appeal and set aside the decree of the court of first instance. It held that the suit was not maintainable, but left undecided the issue 'whether or not the judgment-debtor had any saleable interest.' The plaintiff bus appealed and contends that the lower appellate court was wrong in deciding that the suit was not maintainable and his learned Counsel relies on the Full Bench decision of Munna Singh v. Gajadhar Singh (1883) I.L.R. 5 All. 577. and also on the case of Kishun Lal v. Muhammad Safdar Ali Khan (1891)I.L.R. 13 All. 383 which followed with hesitation the Full Bench case. Apart from these decisions we should have some difficulty in holding that a suit like the present can be maintained. It seems to us that, apart from the provisions of the Code of Civil Procedure, a suit to recover back the purchase money by an auction purchaser does not lie. See remarks of their Lordships of the Privy Council in Dorab Ally Khan v. Abdul Azeez L.R. 5 I. A. 126. In the absence of authority we should be disposed to hold that if the right is the creation of the Cods of Civil Procedure the remedy ought also to be limited to the remedy provided by the Code. It is obviously most inconvenient, after the sale had taken place, that the auction purchaser should be entitled to come in and allege that the sale was bad on the ground of a defect in the debtor's title. It may well have been that the money realised by the sale of the property has been distributed amongst a number of creditors. On the other hand, if the auction purchaser's right is confined to the remedy provided by the Code, under ordinary circumstances his application to set aside the sale would be made within one month and before the distribution of the money realized by the sale. We find it, however, impossible to distinguish the present case from the case of Munna Singh v. Gajadhar singh (1883) I. L. R. 5 All. 577. The learned Additional District Judge refers to the case of Sidheswari Prasad Narain Singh v. Goshain Mayanand (1913) 11 A. L. J. 606; see also I. L. R. 35 All. 419. The head note of this case is somewhat misleading. That case, like the present, was a suit to recover back purchase money on the ground of defect in the judgment-debtor's title. The court, no doubt, considered what was the origin of the plaintiffs right to get hack his purchase money and the court expressed its opinion that such rights as he had were the creation of the Code of Civil Procedure, but it did not and could not as a Bench overrule the Full Bench decision above referred to. We as a Bench, feel ourselves bound by the decision of the Full Bench ruling in the case of Munna Singh v. Gajadhar singh (1883) I.L. R. 5 All. 577. Before deciding whether we will refer the case to a larger Bench or finally decide the appeal, we think it desirable to refer an issue as to the interest of the judgment-debtor at the time of the sale. We accordingly refer the following issue: 'Had the judgment-debtor any saleable interest in the property at the date of the sale?' In deciding this issue the court will not necessarily be bound to hold merely on proof of the sale deeds that the judgment-debtor had no saleable interest, because, if it should appear that the judgment-debtor was in possession or had acquired a title in any other way, he would in our opinion have a 'saleable interest' and the sale could not be set aside. The parties may adduce any further evidence relevant to this issue. The case will be put up on return of the finding and the usual ten days will be allowed for filing objections.


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