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Ramasami Konan Vs. Kulandai Velu Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad63; 70Ind.Cas.569
AppellantRamasami Konan
RespondentKulandai Velu Pillai
Cases ReferredSarat Chunder Dey v. Gopal Chunder Laha
Excerpt:
evidence act (i of 1872), section 115 - execution of decree--decree-holder causing sale of his own property--estoppel--civil procedure code (act v 1908), section 47, order xxi. rules 92, 100, 103--application under order xxi, rule 100, dismissal of--remedy. - .....argument, we must hold that the fact that respondent himself was under a mistake when he filed his sale application will not prevent an estoppel; sarat chunder dey v. gopal chunder laha 20 c. 296 and unless it is found that appellant was not in fact misled, respondent must be held to be estopped. it is unnecessary to call for a finding as to this, however, because appellant is entitled to succeed on the second point. the sale was duly confirmed by order of the court and became absolve under order xxi, rule 92. after that it could only be questioned by a person other than the judgment-debtor applying under rule 100. respondent did in fact apply under this section though whether he was entitled to do so, seeing he was himself the decree-holder, may be doubted. however, he did and his.....
Judgment:

1. Appellant attacks the order of the Subordinate Judge on two grounds,-

(1) that the respondent having himself caused the property to be brought to sale as that of the judgment-debtor is estopped from now claiming it from the auction-purchaser as his own;

(2) that the sale has become absolute under Order XXI, Rule 92 of the Code of Civil Procedure.

2. As regards the first argument, we must hold that the fact that respondent himself was under a mistake when he filed his sale application will not prevent an estoppel; Sarat Chunder Dey v. Gopal Chunder Laha 20 C. 296 and unless it is found that appellant was not in fact misled, respondent must be held to be estopped. It is unnecessary to call for a finding as to this, however, because appellant is entitled to succeed on the second point. The sale was duly confirmed by order of the Court and became absolve under Order XXI, Rule 92. After that it could only be questioned by a person other than the judgment-debtor applying under Rule 100. Respondent did in fact apply under this section though whether he was entitled to do so, seeing he was himself the decree-holder, may be doubted. However, he did and his application was dismissed under Rule 101. After this his only remedy was by suit (vide Rule 103) and his application under Section 47 was incompetent.

3. We see no reason, in the circumstances, of this case to convert this proceeding into a suit.

4. We set aside the lower Court's order and dismiss the petition with costs throughout.


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