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Baru and ors. Vs. Amir Singh - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All78
AppellantBaru and ors.
RespondentAmir Singh
Excerpt:
- - he has held that the plaintiffs having failed to challenge the sale under the provisions of sec. upon the whole matter i am satisfied that the plaintiffs' suit which in substance is a suit to avoid an auction sale held in execution of a mortgage decree is not maintainable......the appellants sought to recover the property which had been sold to the defendant at an auction sale held in execution of a decree in his favour. it is averred by the plaintiffs-appellants that more property was sold than had been mortgaged and therefore covered by the decree obtained on the footing of the mortgage and executed by the defendant. the learned munsif decreed the suit. the learned judge in the lower appellate court reversed the decision of the learned munsif and dismissed the suit. he has held that the plaintiffs having failed to challenge the sale under the provisions of sec. 47, civil p.c., or order 21, they are not now entitled to maintain a suit for possession. the plaintiffs were parties to the execution proceedings. they could have challenged the sale upon the.....
Judgment:

Thom, C.J.

1. This is a plaintiffs' appeal arising out of a suit for possession. The appellants sought to recover the property which had been sold to the defendant at an auction sale held in execution of a decree in his favour. It is averred by the plaintiffs-appellants that more property was sold than had been mortgaged and therefore covered by the decree obtained on the footing of the mortgage and executed by the defendant. The learned Munsif decreed the suit. The learned Judge in the lower Appellate Court reversed the decision of the learned Munsif and dismissed the suit. He has held that the plaintiffs having failed to challenge the sale under the provisions of Sec. 47, Civil P.C., or Order 21, they are not now entitled to maintain a suit for possession. The plaintiffs were parties to the execution proceedings. They could have challenged the sale upon the ground that the sale certificate included more property than the decree directed should be sold. 'When a sale of immovable property has not been challenged by the judgment-debtors a sale certificate is granted by the Court. At the date of the grant of certificate the sale becomes absolute. It was contended for the plaintiffs in appeal that the suit was one for possession and not one to set aside a sale. In substance however, the suit is one to avoid the sale so far as the property not covered by the mortgage is concerned. The sale certificate granted by the Court to the defendant is a formal document of title: see Venkata Jagannatha Rao Garu v. Venkata Kumara Mahipati Surya Rao . The plaintiffs therefore cannot take possession of the property in suit from the defendant unless this document of title is avoided. It is not open now however to the plaintiffs to maintain a suit to set aside the sale. The plaintiffs' right to challenge the sale expired when the sale was confirmed by the Court in favour of the defendant. In this connexion reference may be made to the cases in Rahim Buksh v. Kishen Lal : AIR1939All368 and Kishen Lal v. Peare Lal (1930) 17 AIR All 865.

2. Learned counsel for the appellants relied upon the case in Bulaki Das v. Kesri : AIR1928All363 . The decision in this latter case certainly supports the contention for the plaintiffs that a suit for possession is maintainable where the property, possession of which is claimed, is property which has been sold at an auction sale held in execution of a decree and which has not been covered by the decree. The point in issue was not exhaustively discussed by the Bench which decided that case. It was held that the suit was maintainable upon the ground that so far as the excess property was concerned the auction sale was a nullity. I am unable to agree with this proposition which has been reflected in the decisions already referred to. When a sale has been confirmed by the Court and has become absolute under the terms of Order 21 it cannot be said that the sale is a nullity. The sale has been effected under orders of the Court and it must be considered valid until it is set aside. Upon the whole matter I am satisfied that the plaintiffs' suit which in substance is a suit to avoid an auction sale held in execution of a mortgage decree is not maintainable. There is no force in the appeal, the appeal is accordingly dismissed with costs. Leave to appeal is refused.


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