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Muhammad Abdul Rashid Ali Khan Vs. Budh Sen and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All367; 47Ind.Cas.885
AppellantMuhammad Abdul Rashid Ali Khan
RespondentBudh Sen and anr.
Excerpt:
execution of decree - mortgage-decree--sale--compromise--sale, whether can be set aside by consent--court, power of. - .....was advertised and put up to sale in the usual way and actually sold. after the sale one of the decree-holders purchased it (in all probability on behalf of himself and the other decree-holder). it appears that there had been some attempt at a compromise before the sale actually took place, which fell through. it is alleged that the property was sold considerably below its value, because possible bidders were kept away thinking that the matter had been compromised between the parties. that something of this kind occurred is strongly corroborated by the fact that when an application to set aside the sale was made, the pleader for both decree-holders signed the petition in taken of the agreement of the decree-holders that the sale should be set aside. the learned judge has not disputed.....
Judgment:

1. The facts connected with this appeal are as follows:--There had been a mortgage decree. The property was advertised and put up to sale in the usual way and actually sold. After the sale one of the decree-holders purchased it (in all probability on behalf of himself and the other decree-holder). It appears that there had been some attempt at a compromise before the sale actually took place, which fell through. It is alleged that the property was sold considerably below its value, because possible bidders were kept away thinking that the matter had been compromised between the parties. That something of this kind occurred is strongly corroborated by the fact that when an application to set aside the sale was made, the Pleader for both decree-holders signed the petition in taken of the agreement of the decree-holders that the sale should be set aside. The learned Judge has not disputed the matters that we have mentioned in his judgment. On the contrary his judgment simply says that there is no law by which a sale can be set aside when the judgment-debtor and decree-holder consent. In the present case both the decree holders through their Pleader consented to the sale being set aside; and one or both of the decree-holders was the purchaser or purchasers of the property, Therefore every one concerned consented; and there does not appear to have been any opposition on the part of either the purchaser or the decree-holders. Under these circumstances we think the Court below ought to have set aside the sale and had power to do so. Even in this Court apparently the decree-holders, who, as we have already said; are also the purchasers, are absent and apparently raise no objection to the appeal being allowed. We allow the appeal, set aside the order of the Court below and set aside the sale, and direct that the property be re-sold according to law. We make no order as to costs.

2. Let our order be sent down as soon as possible.


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