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Shiam Lal Vs. Girraj Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1927All76
AppellantShiam Lal
RespondentGirraj Kishore and ors.
Excerpt:
- .....singh. this same fateh singh had a revenue court decree (no. 28 of 1916) for rs. 189-11-9 against shib singh and his brother. shib singh proceeded to execute the decree and attached the decree no. 28 of 1916 of fateh singh. it was put up for auction, and one question that has been argued before us in this case is whether that was, in view of the terms of order 21, rule 53, a proper procedure. at the sale the property was purchased by shiam lal, the present appellant here, for the sum of rs. 50. shiam lal was the clerk of a pleader of shib singh. no objection was made by either shib singh or by fateh singh to this purchase by shiam lal; that is to say, neither of them raised an objection that, under the terms of order 21, rule 73, shiam lal, as clerk of the decree-holder's pleader, was.....
Judgment:

Boys, J.

1. Shib Singh and his brother got a decree (No. 202 of 1912) for costs for Rs. 56 against Fateh Singh. This same Fateh Singh had a revenue Court decree (No. 28 of 1916) for Rs. 189-11-9 against Shib Singh and his brother. Shib Singh proceeded to execute the decree and attached the Decree No. 28 of 1916 of Fateh Singh. It was put up for auction, and one question that has been argued before us in this case is whether that was, in view of the terms of Order 21, Rule 53, a proper procedure. At the sale the property was purchased by Shiam Lal, the present appellant here, for the sum of Rs. 50. Shiam Lal was the clerk of a pleader of Shib Singh. No objection was made by either Shib Singh or by Fateh Singh to this purchase by Shiam Lal; that is to say, neither of them raised an objection that, under the terms of Order 21, Rule 73, Shiam Lal, as clerk of the decree-holder's pleader, was prohibited from purchasing. This is another question with which we are concerned.

2. Subsequently, Shib Singh actually with drew the Rs. 50. Next come the proceedings which are alleged by the present appellant to have been, and which indeed appear to have been, fraudulent. Fateh Singh, notwithstanding the fact that his decree (No. 28 of 1916) had been sold, proceeded to execute it against Shib Singh. What exactly then followed has not been made very clear; but it is clear enough for the purposes of the present appeal that Shib Singh objected, and in the event Fateh Singh and. Shib Singh compromised the matter on certain terms, with which we are not concerned. Some time afterwards was instituted the present suit. Shiam Lal did not proceed to execute the decree against Fateh Singh which he had purchased, but sued Fatch Singh and Shib Singh for recovery of the whole of the amount of that decree as on the date of the compromise. This sum he claimed from Fateh Singh alone, but in the alternative he claimed Rs. 50 from Shib Singh and the balance from Fateh Singh. Shib Singh made no defence. Fateh Singh set up the defence that the purchase by Shiam Lal was a nullity relying upon Order 21, Rule 73 and urging that a pleader's clerk could not buy at the auction sale. This defence found favour with the trial Court. On appeal the lower appellate Court not only agreed in this view but went on to hold that in view of the terms of Order 21, Rule 53 a decree that has been attached could not be sold and the procedure provided by Order 21, Rule 53 must be followed. Shiam Lal appeals to this Court, urging that the view of the lower appellate Court on both points was wrong.

3. The case, first of all, came before our brother, Mr. Justice Mukerji, who referred it to a Division Bench in regard to the effect of Order 21, Rule 73. He pointed out that the question is not covered by any authority and we fully agree with him that it is an important point in relation to the conduct of a legal practitioners' clerk. He did not refer the question of the effect of Order 21, Rule 53, no doubt, because he had already expressed his views in Fateh Lal v. Sher Singh A. I. R. 1925 All. 264 , but at the same time he referred the whole case and we have to deal with it.

4. To consider first the effect of Order 21, Rule 73 we are unable to hold that in the ordinary meaning of the language a clerk of a pleader is a person who has 'duties to perform in connexion with the sale.' First of all, reading the words 'or other person' in connexion with the words 'no officer' it appears to us that Rule 73 is intended to prohibit all those whose who have anything to do with the machinery of the sale or having any interest in the result of the sale. That interest must not be direct or indirect, but we cannot find in this case that there is any suggestion beyond that Shiam Lal was his clerk, that the pleader had an interest in the purchase. We are not, therefore, concerned with the fact that in one aspect the pleader himself may be regarded as an officer of the Court, though we may note that it has been held in Alagirisami v. Ramanathan [1887] 10 Mad. 111 that the corresponding section then in force did not prevent a pleader from purchasing. We are, however, only concerned with the position of a pleader's clerk and we are unable to hold that he was debarred from purchasing by the terms of Order 21, Rule 73.

5. We turn now to the second point, whether in view of Order 21, Rule 53 the sale was a nullity. At the outset, we may say that this question does not really in the peculiar circumstances of the case call for determination. As regards Shib Singh the clear facts are that the sale took place at his own instance and but for his action never would have taken place, and further he himself reaped the benefits of that sale in that he became entitled to, and did actually withdraw, the Rs. 50 purchase money paid by Shiam Lal. As to Fateh Singh he also must be presumed to have have had due notice of the sale. The counsel for Fateh Singh's representative in interest here admits that no objection has been taken hitherto that Fateh Singh had no notice of that sale. Nor is he even in a position to substantiate such an assertion here. Neither at the sale nor subsequently has Fateh Singh made any attempt to object to the purchase by Shiam Lal. It appears to us clear then beyond doubt that neither Shib Singh nor Fateh Singh can be allowed to object to the sale in the present case.

6. We think, however, as the point has been argued before us that it is desirable to express shortly our views as to the effect of Order 21, Rule 53. In the case decided by Mr. Justice Sulaiman and Justice Mukerji, reported in Fateh Lal v. Sher Singh A. I. R. 1925 All. 264 reliance was placed on the terms of Section 60 of the Code of Civil Procedure, and it was noted that the schedule of which Order 21, Rule 53, constitutes a part only deals with procedure. Of course, in one sense Section 60 also only deals with procedure; but there is a clear distinction between the sections of the Act and the schedule, which can be altered or added to at any time by the various High Courts. If it were, therefore, necessary to decide the point we would not be prepared to differ from the view expressed in that case.

7. The result is that, allowing the appeal we set aside the decrees of the Courts below, and decree the plaintiff's claim for recovery of the whole amount as due under the Decree No. 28 of 1916 from Fateh Singh alone. The appellant will have his costs throughout.


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