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Sarovi Begam Vs. Haider Shah and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.404
AppellantSarovi Begam
RespondentHaider Shah and ors.
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89 - auction sale--application to set aside sale--application verbal or written--person interested may apply. - .....was sold by auction to the appellant. within thirty days of the sale the respondent, sultan muhammad, appeared before the subordinate judge with a tender of the required amount in the usual form, duly filled up and beating on it an office report, and he orally requested the subordinate judge to set aside the sale. the subordinate judge signed the tender, returned it to him, and told him to go and pay the money into the treasury; and the money was paid in by sultan muhammad on the same day. the tender was made on behalf of ikram-un-nissa. on a later date, the case was called on before the subordinate judge and he confirmed the sale forgetting that an oral application to have the sale set aside had been made to him by sultan muhammad khan. the three respondents then applied.....
Judgment:

Chamier, J.

1. In this case, in execution of a decree held by the appellant against the respondents, certain property of the respondent, Musammat Ikram-un-nissa, was sold by auction to the appellant. Within thirty days of the sale the respondent, Sultan Muhammad, appeared before the Subordinate Judge with a tender of the required amount in the usual form, duly filled up and beating on it an office report, and he orally requested the Subordinate Judge to set aside the sale. The Subordinate Judge signed the tender, returned it to him, and told him to go and pay the money into the treasury; and the money was paid in by Sultan Muhammad on the same day. The tender was made on behalf of Ikram-un-nissa. On a later date, the case was called on before the Subordinate Judge and he confirmed the sale forgetting that an oral application to have the sale set aside had been made to him by Sultan Muhammad Khan. The three respondents then applied to him for a review of his order, and thereupon he set it aside, and also set aside the sale. The auction-purchaser has appealed. When this case came before me in July last, I returned the record to the Court below in order that the Subordinate Judge might find definitely whether an oral application was made to him and whether the application was brought to his notice when he confirmed the sale. He has found, as already stated, that there was such application, but that it was not brought to his notice when he confirmed the sale. I am prepared to assume that sufficient ground has been established for a review of the Subordinate Judge's order confirming the sale, for it is clear that all the facts were not before him. But this is not an appeal against the order granting the application for review, but is an appeal against the final order passed by the Subordinate Judge, setting aside the sale. The question is, whether the sale should be set aside. Sultan Muhammad Khan has himself stated that he was not, on the date on which the money was tendered, either the general or special attorney of his wife, Ikram-un-nissa. Nor is he a Vakil or a Mukhtiar, therefore, he was not entitled 10 make an application to the Court on behalf of his wife under Order III, Rule 1, of the Civil Procedure Code. It has been held that such an application need not be in writing; but the application, whether oral or in writing, must be in time Deposit of the money alone is not sufficient. The deposit in the present case was not made by a person who owned the property sold or had any interest in it. I feel bound to hold that the provisions of Order XXI, Rule 89, have not been complied with. Musammat Ikram unnissa was, under the circumstances, the only person who coald have applied to set aside the sale. She did not apply within time, nor did any person duly authorised by her, make any application on her behalf. I, therefore, allow this appeal, and set aside the order of the Court below, setting aside the sale. The respondents must pay the applicant's coats in both Courts.


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