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Dip Chand Vs. Sheo Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1929All593
AppellantDip Chand
RespondentSheo Prasad and ors.
Cases ReferredAli Gauhar Khan v. Bansidhar
Excerpt:
.....was not a court of appeal on a question of fact or a question of law. 11 of the report that the subordinate judge, in acting as he did, exercised the jurisdiction which did not vest in him, and failed to exercise the jurisdiction which he had. 121, is no longer a good law, and is not binding upon..........relies most is the case of yad ram v. sunder singh a.i.r. 1923 all. 392, a case decided by three learned judges, one of whom dissented from the opinion of the two others. in this case the judgment-debtor sold his property, after the auction sale, and yet applied for the setting aside of the sale. the court of first instance held that the judgment-debtor having sold his property was not a person competent to apply for the setting aside of the sale. in arriving at this conclusion, the learned judge of the court of first instance followed a decision of this court, in ishar das v. asaf ali khan [1912] 34 all. 186. it was held by banerji, j. that in the view he took of section 115, civil p.c., as interpreted by their lordships of the privy council in balkrishna udayar v. vasudeva ayyar.....
Judgment:

1. This is an application to revise the order of the munsif of Chandausi, dated 16th June 1927, and arises under the following circumstances:

2. In execution of a simple money decree against the applicant, his property was sold in three lots on 10th March 1927. One Shiam Behari purchased the lot No. 1. The second lot was purchased, on the spot, by one Brij Bhukan Saran, but he declared that he was purchasing the same for one Kunwar Bahadur. The third lot was purchased on the spot by one Sarra Mal, but he declared that he was purchasing the property for himself and one Mohamad Raza Khan. On 2nd April 1927, the judgment-debtor put in an application to the Court stating that he had deposited the decretal amount and the 5% on the purchase money, and asked that the sale might be set aside. The application was, as the application itself mentioned, under Order 21, Rule 89, Civil P.C. In the body of the application the judgment-debtor said that the purchasers were Shiam Behari, Kidar Nath and Sarra Mal. It appears that Brij Bhukan Saran was the clerk of the pleader B. Kidar Nath, and B. Kunwar Bahadur was the brother of B. Kidar Nath. The judgment-debtor, apparently, took the purchase by Brij Bhukan Saran as a purchase by his master, B. Kidar Nath, himself. It also seems to be clear that Saran Mal's purchase was taken by the judgment-debtor to be entirely for himself without a partner.

3. One of the purchasers took exception to the application on the ground that the two other purchasers, B. Kunwar Bahadur and Mohammad Raza, had not been impleaded. Thereupon the judgment-debtor asked that notices might be issued to those purchasers also. This application was made more than 30 days after the sale, which, as we have already stated, was held on 10th March 1927.

4. The learned munsif held that the application of the judgment-debtor for setting aside the sale must fail, because he had failed

to implead two of the auction purchasers within the period of limitation.

5. Incidently, we may mention that the sale in favour of Shiam Behari, at any rate, might have been set aside. However, that is a point which has not been discussed before us, and need not be separately considered, in the view we take of the whole case.

6. The judgment-debtor took an appeal to the learned District Judge, and it was heard by a learned Subordinate Judge. That officer upheld the order of the Court of first instance and dismissed the appeal. The judgment-debtor has come in revision.

7. A preliminary point has been taken on behalf of the respondents that no revision is competent. The learned Counsel has taken his stand on several cases, and the case on which he relies most is the case of Yad Ram v. Sunder Singh A.I.R. 1923 All. 392, a case decided by three learned Judges, one of whom dissented from the opinion of the two others. In this case the judgment-debtor sold his property, after the auction sale, and yet applied for the setting aside of the sale. The Court of first instance held that the judgment-debtor having sold his property was not a person competent to apply for the setting aside of the sale. In arriving at this conclusion, the learned Judge of the Court of first instance followed a decision of this Court, in Ishar Das v. Asaf Ali Khan [1912] 34 All. 186. It was held by Banerji, J. that in the view he took of Section 115, Civil P.C., as interpreted by their Lordships of the Privy Council in Balkrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 71, the High Court had no jurisdiction to entertain the application in revision. His Lordship was of opinion that the only matter in which the High Court could interfere was a matter in which the question of jurisdiction was involved. He pointed out that even Clause 3, Section 115 must have 'relation to the question of jurisdiction'. It was on this ground that the learned Judge declined to interfere. Piggott, J. gave different reasons for coming to the same conclusion. He thought that it was impossible for him to say that in following a decision of this Court, namely, the case of Ishar Das v. Asaf Ali Khan [1912] 34 All. 186, the Court below had acted illegally or with material irregularity. That was in substance the reason why the learned Judge refused to interfere with the order of the Court below, although he noticed that, in respect of the actual decision, the Allahabad High Court stood singularly alone in its view. Walsh, J., dissented and was inclined to follow, on the merits the judgment of Mr. Mullick in the case of Dhanwanti Kuer v. Sheo Shankar Lal [1919] 4 Pat. L.J. 340. From the report it does not appear that this learned Judge expressed any detailed opinion on the question of jurisdiction.

8. There can be no doubt that a Full Bench case, although it may be the decision of two learned Judges against the decision of a third, is always entitled to respect from a Division Bench presided over by only two Judges. But what was actually decided in the case of Yad Ram is what we have already described. The net result of the opinion of the two learned concurring Judges was that the revision was thrown out. This case can be easily distinguished from the one before us. The question that had to be decided by the Court of first instance, in Yad Ram's case was a question of pure law, namely, whether a certain person was or was not entitled, on a correct interpretation of a certain rule of law, to apply for the setting aside of the sale. We are prepared to concede, and indeed we must concede, that a revisional Court is not a Court of appeal and it is not every erroneous decision on a point of law or fact that can be corrected by the High Court in its revisional jurisdiction. In the case before us, it is not a mere matter of interpretation of law. The Court below has required, where the law itself does not require, that it should have before it an application in writing in which certain persons, namely, the auction-purchasers, should be shown as opposite parties, as the defendants are described, in a plaint.

9. In our opinion, the learned Munsif invented a procedure of his own, quite unwarranted by Rule 89, Order 21, Civil P.C. It is not a case of mere wrong decision on a point of law.

10. The learned Counsel for the respondents has strongly relied on a dictum of Piggott, J., in the case of Yad Ram v. Sunder Singh A.I.R. 1923 All. 392, at p. 315(of 21 A.L.J.) The learned Judge has said that he could not see how the Court of first instance could be said to have acted illegally or with material irregularity in following a decision of this Court. With all respect, there is another view of the matter. The result of the decision is something entirely different from the reasons of the decision. The result of the decision in the case before his Lordship was that the Court of first instance held that the judgment-debtor was not a person entitled to make the application. That decision might be wrong or right. It was arrived at by following a decision of this Court. The following of the decision of this Court constituted the reason of the decision; but the reason is something different from the result. If the result was an illegal action, or action which may be described as material irregularity, this Court would certainly have jurisdiction to interfere under the express language of Section 115(c), although the result may have been arrived at in a way which is entirely unexceptionable. We are, therefore, unable to agree with Piggott, J. although we have the highest respect for his opinion.

11. The learned Counsel for the respondent relied on the Privy Council case of Balkrishna Udayar v. Vasudeva Ayyar A.I.R. 1917 P.C. 71 and argued that for our interference under Clause (c) Section 115, Civil P.C., there must be a question of jurisdiction. We have carefully read that case, and we are of opinion that interpretation should not be put on their Lordships' judgment. It is true that at p. 799 (of 40 Mad.) their Lordships delivered themselves as follows:

It will be observed that the section applies to jurisdiction alone, the irregular exercise, or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.

12. But, having said so, their Lordships said something further which clearly indicates that all that their Lordships meant to lay down was that the revisional Court was not a Court of appeal on a question of fact or a question of law. In the very case which was before their Lordships, they approved of the exercise of the powers under Section 115, Civil P.C., by the High Court.

13. There are many cases in which their Lordships themselves have interpreted the law in the way in which we propose to interpret it. In Birj Mohun Thakur v. Rai Uma Nath Chowdhury [1893] 20 Cal. 8, a purchaser at a Court sale made an application for the setting aside of the sale on a ground which could not afford him any relief in the execution department. The learned Judge executing the decree entertained his application and set aside the sale. A Division Bench of the High Court interfered and set aside the Subordinate Judge's order. Their Lordships of the Privy Council approved of the conduct of the High Court. Their Lordships observed at p. 11 of the report that the Subordinate Judge, in acting as he did, exercised the jurisdiction which did not vest in him, and failed to exercise the jurisdiction which he had. This decision was, no doubt, given under the old Act of 1882; but there is no difference in the present law and the old law.

14. The latest pronouncement of their Lordships of the Privy Council will be found in the case of Umed Mal v. Chand Mal A.I.R. 1926 P.C. 112. In this case their Lordships approved of the interference by the Chief Commissioner of Ajmer-Merwara. The grounds on which the Chief Commissioner had interfered were approved of, and their Lordships pointed out that the fact that a person very much interested in the result of the litigation was absent from before the Court was itself a sufficient ground for interference by the highest court of appeal, as a Court of revision.

15. We are of opinion that, where a Court has acted, as in the present case, by inventing a rule of procedure, for itself, which is not warranted by the law, the High Court is not only competent to interfere but should interfere.

16. The learned Counsel for the respondents has urged that the Munsif, in refusing to set aside the sale, was only following a case of this Court decided in Karamat Khan v. Mir Ali Ahmad [1891] A.W.N. 121. The learned Counsel said that it being a two Judge case should be followed by us. We have already noticed his argument that the Court below should not be said to have acted illegally or with material irregularity, because it purported to follow a ruling of this Court. We shall not consider again that argument.

17. The case in the 1891 Allahabad Weekly Notes has not been followed unanimously in this Court. It was, no doubt, followed by a single Judge in Ali Gauhar Khan v. Bansidhar [1893] 15 All. 407, but we have got against it, at least, two later decisions, namely, Sarvi Begam v. Haidar Shah [1912] 9 A.L.J. 12 and Ramraj Singh v. Rabi Prasad [1921] 63 I.C. 140. In these cases, two different learned Judges of this Court held that an application for setting aside a sale under Order 21, Rule 89, might be made orally. If an application could be made orally, how possibly could the decree-holder, or the auction-purchaser, be shown, in the oral application, as the opposite parties, as is done in the case of a plaint. We may point out that the decision of 1891 Weekly Notes need not be followed on the ground of stare decision. The point raised is one of procedure alone, and not of substantive law. It cannot be said that people have acted on the basis of this ruling for a number of years and have accepted the rule laid down in the case as a substantive rule of law of the country. Further we may point out that the ruling was given under the old Code, and the present law is, surely not exactly the same as it was in 1882. We do not say that the result of the language employed in the Act of 1908, necessarily implies that a judgment-debtor asking for the setting aside of a sale after deposit of money should not show the persons interested in opposing the application as the opposite party. All that we mean to say is that the language is not the same, and the ruling given on consideration of a different language of the Code need not, necessarily, be by binding on us. In the earlier Code (S. 310 A) nothing was said as to who should be given notice of the application of the judgment-debtor to set aside a sale. Under the present Act Order 21, Rule 92, Sub-rule 2, para. 2 runs as follows:

'Provided no order shall be made, unless notice of the application has been given to all persons affected thereby.

18. This rule would indicate that the duty of giving notice should rest on the Court or its officials. At least there is nothing to indicate that the judgment-debtor, or the applicant for the setting aside of the sale, should trace out who are the parties affected by his application, and make them parties to it. The duty sought to be cast on the applicant implies an investigation as to who are the actual purchasers and who have purchased for whom. The short period of 30 days might be materially shortened, if the judgment-debtors were called upon to hold an investigation into the matter. There is no rule which says that the time occupied in obtaining a copy of the report of the sale officer would be excluded from the period of 30 days. For all these reasons, we are of opinion, with all respect, that the case of Karamat Khan v. Mir Ali Ahmad [1891] A.W.N. 121, is no longer a good law, and is not binding upon us.

19. Coming to the merits of the case, we have given sufficient indication to show that we are of opinion that the application should succeed. Rule 89 does not require the party making the application to nominate any person as the opposite party. The facts of this very case show how difficult it may be for the applicant to discharge this duty in certain circumstances. The judgment-debtor appears to have been actually present on the spot, yet he was misled as to who were the actual purchasers. There is no question of 'bringing anybody on the record.' The learned Judge who decided the case of Ali Gauhar Khan v. Bansidhar [1893] 15 All. 407 speaks of the decree-holder being 'brought on the record.' The execution case was one in which the decree-holder was a principal actor, and no question of his being brought on the record could arise. The auction purchaser and the decree-holder being already on the record, and the unnecessary procedure of showing them as the opposite party cannot be insisted upon, unless there was a clear warrant to the effect in Rule 89. In the result, we allow the application in revision, set aside the orders of the learned Munsif and the Subordinate Judge, and set aside the sale. We note that on other points, the findings are in favour of the applicant. The applicant's costs in this Court and in the Courts below shall be paid by the respondents.


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