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inti Tarini and anr. Vs. Komolo Bisoti and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.763
Appellantinti Tarini and anr.
RespondentKomolo Bisoti and ors.
Cases ReferredMqhideen Ibrahim v. Mqhamed Meera Levvai
Excerpt:
civil procedure code (act xiv of 1882), section 315 - civil procedure code (act v of 1908), order xxi, rule 93---sale under old code---sale, setting aside of, after passing of new code---refund of purchase-money, claim, for---procedure-execution---suit. - - 1. an application was made to the lower court by a purchaser in a court auction, whose purchase has been held to be bad in a separate suit on the ground that the judgment-debtor had no saleable interest, and who has been deprived of the property of which he was placed in possession in the court sale......(1), it is not necessary to consider: for, in that case both the sale and the setting aside of the sale by separate proceedings had taken place while the old code was in force and the right to recover back the purchase-money under the specific terms of the section had already come into existence. i shall assume in favour of the petitioner that because his sale took place while the old act was in force he is entitled to refund of the purchase-money although the sale was set aside after the new act came into force and can enforce that right by a separate suit. but then the further question arises whether he is entitled to take advantage of the last clause of section 315 which merely prescribes the procedure by which the right to recover the purchase-money can be enforced. that procedure is.....
Judgment:

Srinivasa Aiyangar, J.

1. An application was made to the lower Court by a purchaser in a Court auction, whose purchase has been held to be bad in a separate suit on the ground that the judgment-debtor had no saleable interest, and who has been deprived of the property of which he was placed in possession in the Court sale. No application was made under Order XXI, Rule 91, to set aside the sale. But still it is claimed that inasmuch as the sale took place while the old Act was in force, the present petitioner is entitled to take advantage of the procedure prescribed in Section 315 and claim a refund of the purchase-money by way of execution under the last clause of Section 315.' Whether this case will be governed by the decision in Mqhideen Ibrahim v. Mqhamed Meera Levvai (1), it is not necessary to consider: for, in that case both the sale and the setting aside of the sale by separate proceedings had taken place while the old Code was in force and the right to recover back the purchase-money under the specific terms of the Section had already come into existence. I shall assume in favour of the petitioner that because his sale took place while the old Act was in force he is entitled to refund of the purchase-money although the sale was set aside after the new Act came into force and can enforce that right by a separate suit. But then the further question arises whether he is entitled to take advantage of the last clause of Section 315 which merely prescribes the procedure by which the right to recover the purchase-money can be enforced. That procedure is by way of execution. That has been repealed and there is a special Section now which deals with this matter, namely Order XXI, Rule 93, which provides for the refund of purchase-money in cases where the sale is set aside on particular grounds including want of saleable interest in the judgment-debtor in the execution proceedings. That does not apply to the present case. I do not think that the petitioner is entitled to the particular procedure prescribed in Section 315, whatever his rights may be to enforce his claim, if one there is in his favour, by separate suit. On this ground I dismiss this petition with costs.


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