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Venkata Krishnayya Vs. Narasimham - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ56
AppellantVenkata Krishnayya
RespondentNarasimham
Excerpt:
- .....of the sale. it was made on the 20th february, and not on the 22nd as erroneously supposed by the district judge, and was, therefore, within 30 days of the sale which was on the 22nd january.2. the district judge has also, we think, erred in holding that the district munsif had no power to entertain the application under section 310-a. although a petition under section 311 c.p.c. was pending when that under section 310-a was put in, yet when the petitions were first called up for disposal, the petitioner was, at the instance of the other side, called upon to elect whether he will proceed with the petition under section 310-a, or with that under section 311, and he then withdrew the latter.3. in these circumstances, we must treat the matter as if no application under section 311 has been.....
Judgment:

1. The District Judge has made a mistake of fact in stating that the application under Section 310-A, Civil Procedure Code, was not made within 30 days of the sale. It was made on the 20th February, and not on the 22nd as erroneously supposed by the District Judge, and was, therefore, within 30 days of the sale which was on the 22nd January.

2. The District Judge has also, we think, erred in holding that the District Munsif had no power to entertain the application under Section 310-A. Although a petition under Section 311 C.P.C. was pending when that under Section 310-A was put in, yet when the petitions were first called up for disposal, the petitioner was, at the instance of the other side, called upon to elect whether he will proceed with the petition under Section 310-A, or with that under Section 311, and he then withdrew the latter.

3. In these circumstances, we must treat the matter as if no application under Section 311 has been made. The policy of the Section is to prevent a person who determines to impeach the sale under Section 311 from at the same time obtaining the benefit of the concession granted under Section 310-A.

4. We do not think that it was intended that a party who withdraws all objections under Section 311 (without having done more than merely file a petition under the Section) should be debarred from claiming relief under Section 310-A.

5. We must, therefore, set aside the order of the District Judge and restore that of the District Munsif with costs in this and in the lower appellate Court.


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