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Raghubir Singh Vs. Gokul Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All140
AppellantRaghubir Singh
RespondentGokul Singh and ors.
Excerpt:
- - seth is well founded, there has been no more than an error of law on the part of the court below.mears, c.j.1. this is an application for revision by a decree-holder, whose purchase in execution of his decree had been set aside by the subordinate judge on bulandshahr on 4th may 1929. the last order was confirmed by the district judge on appeal on 6th june 1930. the decree-holder has obtained a decree for sale in enforcement of a mortgage., this decree was put into execution and 20th october 1928 was originally fixed for the sale. on this date no sale took place, the date having been postponed to 3rd november 1928. on this date the only person present to bid was the decree-holder and the latter purchased the property. the application for setting aside the sale was made by the judgment-debtor under order 21, rule 90, civil p.c. the court of first instance held that the sale had taken.....
Judgment:

Mears, C.J.

1. This is an application for revision by a decree-holder, whose purchase in execution of his decree had been set aside by the Subordinate Judge on Bulandshahr on 4th May 1929. The last order was confirmed by the District Judge on appeal on 6th June 1930. The decree-holder has obtained a decree for sale in enforcement of a mortgage., This decree was put into execution and 20th October 1928 was originally fixed for the sale. On this date no sale took place, the date having been postponed to 3rd November 1928. On this date the only person present to bid was the decree-holder and the latter purchased the property. The application for setting aside the sale was made by the judgment-debtor under Order 21, Rule 90, Civil P.C. The Court of first instance held that the sale had taken place in defiance of the provision of Order 21, Rule 69 and therefore set aside the sale.

2. The lower appellate Court framed an order but for a different reason. It held that there was some irregularity in publishing and conducting the sale and that the property had been sold for a very inadequate price to the prejudice of the judgment-debtor. This order is attacked in revision under Section 115, Civil P.C. Mr. Shambhu Nath Seth, for the decree-holder, argues that the judgment-debtor could not be permitted to raise any objection as to the nature and amount of incumbrance as he had not taken any objection to the sale at the time that proceedings were taken under Order 21, Rule 66, Civil P.C. We may point out that Section 115 is not intended to be directed against conclusions of law or fact in which jurisdiction is not involved. Assuming that the contention of Mr. S.N. Seth is well founded, there has been no more than an error of law on the part of the Court below. As we have pointed out in Anthony Ullyssess John v. Agra United Mills Ltd : AIR1931All72 , Section 115 applies to jurisdiction alone, the regular exercise or the non-exercise of it or the legal assumption of it. This case does not come under any of these. We accordingly disallow the contention. The result: is that this application fails and is dismissed with costs.


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