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Tejpal and anr. Vs. Kalyan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in97Ind.Cas.256
AppellantTejpal and anr.
RespondentKalyan and anr.
Cases Referred and Uttam Chandra Daw v. Raj Krishna Dalai
Excerpt:
transfer of property act (iv of 1552), section 99 - sale, in contravention of, not void but irregular. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - if this is correct, the appeal has abated against kalyan singh and as his heirs are indefesibly entitled to retain possession of the plots in suit the whole appeal would necessarily fail on this ground......to contest the validity of a full bench ruling of this court. on the findings of fact arrived at by the court below that ruling is fatal to the 'appeal, which i, accordingly, dismiss with costs including fees on the higher scale.2. there is another difficulty in the way of the appellant in that the respondent has filed an affidavit to-day stating that one of the respondents, kalyan singh, and one of the appellants, tejpal, died eighteen and eight months ago respectively. if this is correct, the appeal has abated against kalyan singh and as his heirs are indefesibly entitled to retain possession of the plots in suit the whole appeal would necessarily fail on this ground. the appellant has not had time to answer this affidavit, but as the appeal fails on the merits it is.....
Judgment:

Daniels, J.

1. This is an appeal by the defendants in a suit for redemption which has been dismissed. The finding of the Court below is that the mortgagee purchased the equity of redemption at a Court-auction sale as far back as 20th November, 1888. The trial Court held that this sale was anullity, having been effected under a simple money-decree in contravention of Section 93 of the Transfer of Property Act which was then in force. But, as the Court below points out, a Full Bench of this Court has held in Lal Bahadur Singh v. Abharan Singh 27 Ind. Cas. 795 : 37 A. 165 : 13 A.L.J. 138, that a sale in contravention of this section was merely irregular and was valid unless set aside before confirmation. The Calcutta High Court has taken the same view in two cases, Ashutosh Sikdar v. Bthari Lal Kirtania 35 C. 61 : 11 C.W.N. 1011 : 6 C.L.J. 320 and Uttam Chandra Daw v. Raj Krishna Dalai 55 Ind. Cas. 157 : 47 C. 377 : 24 C.W.N. 229 : 32 C.L.J. 98. It is impossible for the appellants to contest the validity of a Full Bench ruling of this Court. On the findings of fact arrived at by the Court below that ruling is fatal to the 'appeal, which I, accordingly, dismiss with costs including fees on the higher scale.

2. There is another difficulty in the way of the appellant in that the respondent has filed an affidavit to-day stating that one of the respondents, Kalyan Singh, and one of the appellants, Tejpal, died eighteen and eight months ago respectively. If this is correct, the appeal has abated against Kalyan Singh and as his heirs are indefesibly entitled to retain possession of the plots in suit the whole appeal would necessarily fail on this ground. The appellant has not had time to answer this affidavit, but as the appeal fails on the merits it is unnecessary to go into the question. The affidavit may remain on the record.


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