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Abul Nasar RashiduddIn Ahmad Khan Vs. Lalta Prasad and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All315; 71Ind.Cas.1018
AppellantAbul Nasar RashiduddIn Ahmad Khan
RespondentLalta Prasad and anr.
Cases ReferredFazal Rab v. Manzur Ahmad
Excerpt:
.....89 - sale proclamation--amount undeqstated--deposit of amount mentioned, whether compliance with rule--execution sale, stay of, by appellate court--sale held notwithstanding stay, effect of--revision--court failing to apply its mind to real question--high court, jurisdiction of. - - execution was first taken out in the latter of these two decrees, but apparently the attempts of babu ram as decree-holder were directed in the first instance against the property of muhammad shafi and were unsuccessful. the execution court nevertheless ordered that the sale of the attached property should proceed in consequence of babu ram's application for a rateable distribution, until babu ram's decree was also satisfied. we are not concerned to consider whether this was a strictly regular method of..........directing him to do what he perfectly well knew that it did direct him to do, namely, to stay the sale of rashiduddin's property which was about to be held on the 20th of june 1921 for the satisfaction of babu ram's decree. accordingly, the sale actually took place on that date and the property was finally knocked down to an auction-purchaser who bid a sum of rs. 1,000.4. we have no doubt that rashiduddin, if he had been properly advised, could have obtained from the appellate court, if not from the learned munsif himself, upon mature consideration, an order to the effect that this sale was an absolute nullity, having been held without jurisdiction at a, time when the execution court had in front of it an order by a competent court of appellate jurisdiction directing it not to proceed.....
Judgment:

1. This is an application in revision which arises out of a somewhat complicated state of facts. If our order is not to be misinterpreted and misapplied hereafter as deciding something which we have no intention of deciding, it seems advisable that we should state the essential facts in some detail. In the year 1920 two decrees were obtained in two different suits in the Court of the Munsif of Moradabad. One decree, passed on the 15th of April 1920, was in Suit No. 175 of 1920, and was in favour of Ram Prakash against Rashiduddin. The other decree passed on the 4th of August 1920 was in Suit No. 298 of 1920, in favour of Babu Bam against Muhammad Shafi and Rashiduddin. Execution was first taken out in the latter of these two decrees, but apparently the attempts of Babu Ram as decree-holder were directed in the first instance against the property of Muhammad Shafi and were unsuccessful. At any rate, on the 26th of October 1920. Ram Prakash, having taken out execution of his decree in Suit No. 175 if 1920, succeeded in attaching immoveable property belonging to his judgment-debtor Rashiduddin. Thereupon on the 18th December 1920 Babu Ram applied for rateable distribution as against the assets of Rashiduddin of any money which might be realised upon the application of Ram Prakash. The property of Rashiduddin thus attached was put up for sale more than once, but no sale actually took place on the first two or three occasions, because the Court in charge of the execution proceedings refused to accept any of the bids offered. After several of these ineffectual attempts the property under attachment was ordered to be sold on the 20th of June 1921, and a sale proclamation was issued for that date.

2. In the meantime several things had happened. First of all, Rashiduddin paid off in full the decree of Ram Prakash, and satisfaction of that decree was entered on the 15th of February 1921 under the orders of the Court. The Execution Court nevertheless ordered that the sale of the attached property should proceed in consequence of Babu Ram's application for a rateable distribution, until Babu Ram's decree was also satisfied. We are not concerned to consider whether this was a strictly regular method of procedure, or whether, in his own interests, it would not have been better for Babu Ram, as soon as the decree of Ram Prakash was satisfied, to have asked the Court frontally to re-attach the property in execution of his own decree. The practical result, however, was that in the sale proclamation by which the property was advertised for sale on the 20th of June 1921 the amount for the recovery of which the sale was ordered was wrongly stated. Obviously, the sale was being ordered for the satisfaction of Babu Ram's decree for which by that time a sum of Rs. 567-6-6 was required. In the sale proclamation, however, the amount entered was only Rs. 300-9 6, being the amount of the decree originally passed in favour of Ram Prakash.

3. Another important event which had occurred before the 20th of June. 1921 was that Rashiduddin, having in the meantime appealed against Babu Rani's decree in Suit No. 298 of 1920, presented an application to the Appellate Court for stay of execution. That Court, whether rightly or wrongly, granted this application for s ay. It did not merely pass an order in general terms directing execution proceedings in respect of the decree obtained by Babu Ram in Suit No. 298 of 1920 to be stayed, but it sent down to the Execution Court a specific order directing the auction sale to be postponed. That order could only refer to the sale which was about to be held under the orders of the Execution Court for the satisfaction of Babu Ram's decree. Nevertheless, the learned Munsif. with this order before him flatly refused to issue orders for the postponement of the sale. He gave certain reasons for doing so. He seemed to think that the judgment-debtor was in some way to blame for the fact that the execution of Babu Ram's decree obtained in Suit No. 298 of 1920 was still proceeding upon an attachment which had been effected in the course of the execution of Ram Prakash's decree in Suit No. 175 of 1920. Throwing the, blame of this fact upon the judgment-debtor, the learned Munsif held that the stay order which he had received was not an order directing him to do what he perfectly well knew that it did direct him to do, namely, to stay the sale of Rashiduddin's property which was about to be held on the 20th of June 1921 for the satisfaction of Babu Ram's decree. Accordingly, the sale actually took place on that date and the property was finally knocked down to an auction-purchaser who bid a sum of Rs. 1,000.

4. We have no doubt that Rashiduddin, if he had been properly advised, could have obtained from the Appellate Court, if not from the learned Munsif himself, upon mature consideration, an order to the effect that this sale was an absolute nullity, having been held without jurisdiction at a, time when the Execution Court had in front of it an order by a competent Court of appellate jurisdiction directing it not to proceed with the sale. However, Rashiduddin seems to have determined that the best thing for him to do, under all the circumstances, was to pay up his debts in the quickest and easiest manner possible. He thought that, even though the method which he proceeded to adopt might throw upon him the burden of an additional payment of Rs. 50 for the benefit of the auction-purchaser, it might, nevertheless prove to be the simplest and easiest way out of his difficulties to invoke the provisions of Rule 89 of Order XXI, Civil Procedure Code, to pay up all demands and to get the sale conclusively set aside. Presumably with this object in view, Rashiduddin applied to the Court on the 18th of July 1921, that is to say, within the period of 30 days required by the rule in question, to receive from him what he obviously believed in good faith to be the full amount necessary to pay off Babu Ram, to satisfy the auction-purchaser and to get back his property, which had been sold at auction. In his application he stated the amount due to Babu Ram as decree-holder to be Rs. 558-14. He tendered that amount plus Rs. 50 for the benefit of the auction-purchaser and Rs. 6 on account of the costs of the sale, making a total of Rs. 614-14 in all. It so happened that the records of the case were at that time before the Appellate Court in the appeal which had been lodged against the decree in Babu Ram's favour in Suit No. 298 of 1920. There was, consequently, some little delay in preparing the office report. We have before us an office report of the 18th of July 1921 which purports to specify the amount due under the decree at Rs. 567-6-6; but the very same clerk who prepared that report expressly states that, not having the necessary papers before him, he cannot prepare a final report regarding the sufficiency of the amount' tendered. The money thus tendered by; Rashiduddin was taken in deposit subject to further orders, and eventually it was ascertained that the deposit was short by the difference between Rs. 567-6-6 and Rs. 558-14 and possibly by some further amount on account of accumulated costs of execution. Rashiduddin made one further attempt to obtain from the Execution Court the restoration of his property on payment of all liabilities, and, on the 2nd of August 1921 he tendered a further sum of Rs. 21-6-6. It has never been contested that the total of the two amounts tendered by Rashiduddin on the 18th of July 1921 and on the 2nd of August 1921 was sufficient to pay off Babu Ram, as well as to compensate the auction-purchaser by payment to him of the 5 per cent, as purchase-money required under Rule 89, Order XXI. When, however, the question of the confirmation of the sale came up before the Execution Court, that Court held that it could take no a count of the deposit made on the 2nd of August 1921. It did not apply itself to the terms of Order XXI, Rule 89, or pause to consider whether Rashiduddin had not, after all, effectually complied with these terms. It simply took note of the fact that the deposit made on the 18th of July 1921 was insufficient, regard being had to the office memorandum which had been forwarded by the Execution Court to the Collector, specifying the amount necessary to satisfy Babu Ram's decree as Rs. 567-6-6. On the strength of this finding the learned Munsif held that he had no option but to reject Rashiduddin's application under Order XXI, Rule 89 and to confirm the sale, which he accordingly did. There was an appeal against this order as permitted by the turms of Order XLIII, Rule 1(j), but in the Court of Appeal the real point in favour of Rashiduduin was once more overlooked. The learned Subordinate Judge, in disposing of the appeal, expressly took it upon himself to consider only whether the sum deposited 011 the 18th of July 1921 was or was not sufficient to pay off the decretal amount, landing that it was not so, he dismissed the appeal of Rashiduddin.

5. Now, that both the Courts below were at least technically wrong is beyond all question. Order XXI, Rule 89, requires a person entitled to the benefit of that rule to deposit in Court, besides the 5 per cent, compensation for the act on-purchaser and necessary costs, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. The person making the d. posit and the Court receiving the deposit are only concerned with what was notified in the proclamation of sale. If the proclamation of sale was incorrectly drawn up and failed to specify, as it should have done, the full amount to the recovery of which the sale was ordered, that is not a circumstance which can be invoked in derogation of the plain terms of Rule 89. It is for a decree-holder to see to it that the sale proclamation, whatever other error may creep into it, doe, at least correctly state the amount for the recovery of which the sale is ordered. The whole trouble in the present case a use out of Babu Ram's decree applying for rateable distribution in the execution, proceedings taken by Ram Prakash and then not troubling himself to keep in elective watch over those proceedings, more specially when the conditions had been modified by the decree of Ram Prakash, being satisfied in full. If he had done so, the might have found himself technically, in the right over the matter of the deposit made by Rashiduddin on the 18th of July 1921 just as certainly as he is now technically in the wrong. We are bound to hold that Rashiduddin did on the 18th of July 1921 deposit the full amount which he was required to deposit in order to entitle him to the benefit of that rule. His deposit ought to have been accepted.

6. The question, however, remains, and it has been strongly pressed upon us in argument on behalf of the decree-holder and auction-purchaser, that whether the Courts below were right or wrong, they have after all decided a question within their jurisdiction. It is put to us in argument that the question raised in both the. Courts below was whether Rashiduddin's deposit of the 18th of July 1921 was or was not sufficient to entitle him to the benefit of the provisions of Order XXI, Rule 89, and that both the Courts below, in the exercise of their jurisdiction, have decided this point against the judgment-debtor. In this connection our attention has been drawn to the principles laid down by a Bench of this Court in the case of Fazal Rab v. Manzur Ahmad 45 Ind. Cas. 773 : 16 A.L.J. 433 : 40 A. 425. The difficulty we feel about applying the principles laid down in that rule to the facts of the present case is twofold. In the first place, neither of the Courts below, in the case now before us, applied its mind at all to the real question requiring adjudication, namely, whether the deposit made on the 18th of July 1921 was or was not sufficient to fulfill the requirements of Order XXI, Rule 89. Neither Court consulted the proclamation of sale at all, or made any reference to the amount therein specified as that for the recovery of which the sale was ordered. If this were the only matter for consideration before us, we might, even while recognizing the hardship suffered in the present. instance by the applicant in revision, hesitate to lay down a principle which might seem to open door to The presentation of what are, in substance, second appeals upon questions of law in cases where the Legislature has not seen fit to allow of such appeals. We are, however, much impressed with the fact that the sale itself, as h Id on the 20th of June 1921, was, in our opinion, a nullity. After all, it has been necessary for us, in order to dispose of this application in revision, to go into the facts and to examine the whole of the proceedings taken in the Execution Court. We are clearly of opinion that on the 18th of June 1921 the Execution Court had before it a clear order from an Appellate Court of competent jurisdiction directing it to postpone this particular sale which it had fixed for the 20th of June, 1921. It was the duty of the Execution Court to comply with that order. In our opinion it had no jurisdiction to do otherwise.

7. Taking this fact into consideration, along with all the other points which we have set forth and discussed, we feel satisfied that this is a casein which this Court has jurisdiction to interfere in revision, and in which the revisional jurisdiction of this Court might properly be exercised in the interests of justice. We have no doubt that Rashiduddin was acting in good faith on the 18th of June 1921 and. was simply anxious to rid himself of further trouble and litigation by satisfying Babu Ram's decree and getting his property back. It was for this reason, undoubtedly, that he preferred to accept the auction-sale as provisionally valid and to endeavour to get it set aside under Order XXI, Rule 89. He could, in our opinion, have brought forward an unanswerable case for challenging its validity. It was his misfortune that he failed to tender the full amount necessary to pay off Babu Ram's decree. On the other hand, he was fortunate enough, without knowing it, to comply fully with the provisions of Order XXI, Rule 89, because, as a matter of fact, the amount for the recovery of which the sale to be held on the 20th of June 1921 had been ordered, was under-stated in the sale proclamation and his deposit was more than sufficient to cover that amount.

8. Our order, therefore, is that we set aside both the order of the learned Munsif confirming the sale and the order of the lower Appellate Court refusing to interfere with that order. In lieu thereof we pass an order under Older XXI, Rule 89, setting aside the auction-sale in question. We see no reason why advantage should not be taken of the full amount deposited in Court by Rashiduddin to must the claims for the satisfaction, of which that money was in fact tendered. We direct accordingly, that out of the total amount deposited by Rashiduddin on both the dates, namely, the 18th of July 1921, and the 2nd of August 1921, Rs. 50 be paid to the auction-purchaser, Lalta Prasad, and the balance after payment of lawful costs to the decree-holder, Babu Ram. Under all the circumstances, we leave the parties to this application to bear their own costs throughout.


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