Skip to content


T. Keshavan Vs. Bipathumma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad340; 159Ind.Cas.993
AppellantT. Keshavan
RespondentBipathumma and ors.
Cases ReferredMuthukumaraswami Pillai v. Muthuswami Thevan
Excerpt:
- - the sale stands good unless it is set aside and so long as the sale stands, it is not possible to justify the setting aside of the order recording satisfaction. otherwise, it would mean that the sale would stand good and nevertheless the purchaser need not pay anything......his opinion that as the first judgment-debtor had admittedly no interest in the property sold, the decree-holder purchaser had bought nothing and therefore nothing need be set aside, and that without setting aside the sale it was open to him to set aside the order recording satisfaction to the extent of the amount of the purchase money, namely rs. 780. he was of opinion that as the question that h9 had to decide was really one relating to satisfaction of the decree, this question which was to be decided by the executing court could be raised in an application made within three years from the date of the decree, or from the date of the previous step in aid of the execution. on appeal by the judgment-debtors, the additional subordinate judge was of opinion that the executing court had no.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the Additional Subordinate Judge of South Kaaara dated 20th February 19

2. He then proceeded to express his opinion that as the first judgment-debtor had admittedly no interest in the property sold, the decree-holder purchaser had bought nothing and therefore nothing need be set aside, and that without setting aside the sale it was open to him to set aside the order recording satisfaction to the extent of the amount of the purchase money, namely Rs. 780. He was of opinion that as the question that h9 had to decide was really one relating to satisfaction of the decree, this question which was to be decided by the executing Court could be raised in an application made within three years from the date of the decree, or from the date of the previous step in aid of the execution. On appeal by the judgment-debtors, the Additional Subordinate Judge was of opinion that the executing Court had no right to set aside the order recording satisfaction without setting aside the sale, because if the sale stands, the order recording satisfaction should also stand, the one being a necessary corollary of the other. It was also conceded before him on behalf of the decree-holder purchaser that the Court sale was not exactly a nullity.

3. The learned Subordinate Judge also added that where the judgment-debtor has no saleable interest in the property, the only remedy that the decree-holder purchaser has is by an application under Order 21, Rule 91, Civil P. C, and that the sale could not be set aside by the decree-holder purchaser by any other means, and as that remedy by way of an application under Order 21, Rule 91, was barred by limitation, he had lost his remedy. The learned Subordinate Judge relied on the ruling in Muthukumaraswami Pillai v. Muthuswami Thevan 1927 Mad 394.

4. There can be no doubt that the order of the Subordinate Judge is in accordance with the ruling in Muthukumaraswami Pillai v. Muthuswami Thevan 1927 Mad 394 which is relied upon by him. It was there held that a sale in execution of property which subsequently is found to be not to belong to the judgment-debtor is not void, and that it does not make any difference whether the purchaser is the decree-holder or any stranger. It was also held that an application by the decree holder purchaser to set aside a sale on the ground that the property which he brought to sale under the bona fide belief that it belonged to the judgment-debtor was not really the property of the judgment-debtor was one which would be governed by Article 166, Lim. Act. It was further held that the only course that was open to the decree-holder purchaser on discovering that the property sold at his instance by Court and [bought by him did not belong to the judgment-debtor, is to apply to have the (sale set aside under Order 21, Rule 9.1, Civil I.P.C., and that he is not entitled to a (larger period of limitation merely because the main relief sought by him in the subsequent application was further execution of the decree. I am of opinion that in view of this ruling the order of the Subordinate Judge must be held Ito be right.

5. The appellant's advocate has referred to several decisions and in particular to the recent Full Bench decision in C.M.S.A. No. 54 of 1930 (2). There is however nothing in this Full Bench decision which really helps the appellant in this case. What the Full Bench decided was that, where a stranger is the auction purchaser, he can have the sale set aside in execution by an application under Rules 89 and 90 or 91, Order 21 and thereupon obtain a refund under Rule 93 and that where the sale turns out to be futile by reason of a finding in another suit, the only remedy which he has is by way of a regular suit and not by an application under Order 21, Rule 93. This does not really help the appellant in this case, for, in the first place, he is the decree-holder in the suit and he has no right to file a separate suit in respect of a question which really relates to the execution on satisfaction of his decree, and secondly in view of the facts of the present case, as he has paid no money into Court, he has no right to ask for a refund. The only relief he can ask for is to set aside the sale or to get the order recording satisfaction set aside. As regards the first prayer, it is barred by limitation and there can be no doubt about this. As regards the latter prayer, there is no provision of law which permits the executing Court, once it has recorded satisfaction, to set it aside; there is an appeal provided by law from such an order and no appeal was preferred. The District Munsif, in setting aside the order of recording satisfaction made by himself, did not purport to act under his powers of review. He apparently did so because he was of opinion that the sale itself was a nullity. This view however that the sale is a nullity, is not correct. The sale stands good unless it is set aside and so long as the sale stands, it is not possible to justify the setting aside of the order recording satisfaction. Otherwise, it would mean that the sale would stand good and nevertheless the purchaser need not pay anything. I am therefore of opinion that the order appealed from is right.

6. I have not had the advantage of hear- ing arguments on the other side because the respondents are unrepresented. But in my view, though the case of the appellant may be a hard one, the hardness of it is mainly due to his own negligence, first in not making sufficient inquiry about the ownership of the property which he brought to sale, and secondly, in not ascertaining the actual facts of the case in time. The law gave him a remedy, and if the law has fixed a comparatively short period of 30 days for applying to the Court, nothing can be done by the Court to relieve him from this hardship. It is possible that the legislature thought that while, a stranger would have a longer period of limitation for the purpose of seeking a remedy by way of a separate suit, a decree-holder, when he chooses to purchase the property which he himself brought to sale should not have as long a period. Whatever that may be, I am of opinion, that according to the law as it stands, the order of the District Munsif setting aside his previous order recording satisfaction was rightly set aside by the lower appellate Court. The appeal therefore fails and is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //