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Borojo Charchi Vs. Odhikari Basudebo Doss - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad152
AppellantBorojo Charchi
RespondentOdhikari Basudebo Doss
Cases Referred and M. Jagannatha Rao v. R. Basavayya A.I.R.
Excerpt:
.....not satisfied and sought to attach and sell other properties of the respondent. 4. we think that these observations apply with equal force to a case like the present where matters simply rested in a decree obtained against him which might or might not be executed. the first point raised is that order 21, rule 91, makes the sale absolute and binding if not set aside by the auction-purchaser within 80 days and that in the present case the auction-purchaser not having done so, the decree in his favour was a decree which was not a proper decree to have been passed, and that as his client was exonerated, it is open to him to take the point that the original 'satisfaction recorded stands good as the sale has not been set aside in 30 days as required by the civil procedure code and the..........the date when he actually paid the amount of that decree.2. the other objection taken was that the present application is barred under section 48 as it was over 12 years. the district munsif held that limitation began from the data when the appellant actually paid the amount and also held that section 48 was not a bar, and there is no discussion as regards the applicability of section 48 as he held that the subsequent application was a revival of the original application. the district judge reversed the decision of the district munsif on the ground that the three years began to run from the date of the decree passed in favour of the auction-purchaser and that it was the duty of the present appellant to have paid the amount then and not to have waited till the auction-purchaser pressed.....
Judgment:

Kumaraswami Sastri, J.

1. This appeal arises out of an order passed by the District Judge reversing the decision of the District Munsif on an application to execute the decree passed in O.S. 1215 of 1908 which was filed on 11th January 1924. The facts are: the decree-holder in O.S. 1215 of 1903 filed an application (157/13) to execute his decree and obtained satisfaction of the decree by the sale of the properties which were charged for the decree. The auction-purchaser, according to the statement of account we find in the judgment, got possession, cultivated the land some time bat was dispossessed by a third person who claimed a title to the properties. We may state here that the suit was not on a mortgage but that there was a consent decree, the defendant having given these properties as a security for the decree amount. Finding that he was dispossessed the purchaser filed a suit to establish his title to the property but was unsuccessful. As he could not get possession the purchaser filed O.S. 366 of 1917 to recover the purchase money which went in satisfaction of the decree and to that suit he made the present respondent a party. The respondent, however, was exonerated and a decree was passed against the other party. The appellant had to pay the decree amount and after he paid the amount he applied to execute the original decree on the ground that it was not satisfied and sought to attach and sell other properties of the respondent. Before the District Munsif the pleas that were raised by the respondent were that the execution application is barred because limitation started from the date of the decree in O.S. 366 of 1917 and not from the date when he actually paid the amount of that decree.

2. The other objection taken was that the present application is barred under Section 48 as it was over 12 years. The District Munsif held that limitation began from the data when the appellant actually paid the amount and also held that Section 48 was not a bar, and there is no discussion as regards the applicability of Section 48 as he held that the subsequent application was a revival of the original application. The District Judge reversed the decision of the District Munsif on the ground that the three years began to run from the date of the decree passed in favour of the auction-purchaser and that it was the duty of the present appellant to have paid the amount then and not to have waited till the auction-purchaser pressed for execution and that the application was, therefore, barred. In that view it was not necessary to consider Section 48.

3. It is argued for the appellant that the judgment of the District Judge is wrong and that the starting point would be from the date when in execution of the decree he was compelled to pay the amount, because if for any reason the decree-holder did not execute his decree, there was no damage which the appellant could suffer. He could not then say that he has suffered damage because ho had not to repay any money which he got in satisfaction of the decree in the original suit. We think that the observations in R. Venkata Appa Rao v. L. China Ayyanna [1903] 30 Mad. 209, support the argument of the appellant. At page 211 the learned Judges observe.

When the sale is set aside, the decree-holder is liable to repay the purchase money if called upon by the purchaser to do so, but not otherwise. His position in this respect is analogous to that of the bankers in the case of Torab Ali Khan v. Nilruttun Lal [1886] 13 Cal. 155, who had paid out money to a wrong person; it was held that their cause of action against that person for recovery of the money did not arise before they were compelled to pay the true owner; till then it could not be said that they were damnified by the action of the defendants. Until the money was paid the plaintiffs did not suffer any loss. The mere demand by the heirs of Asgar Hossein (the real owner) did not give the plaintiffs a cause of action against the defendants, nor did the institution of the suit. The demand might have bean abandoned, or the suit dismissed.

So here the judgment-debtor's action in getting the sale set aside did not injure the decree-holder until he was compelled to refund the purchase money to the purchaser, and till then he had no right to call upon the judgment-debtor to pay his debt a second time.

4. We think that these observations apply with equal force to a case like the present where matters simply rested in a decree obtained against him which might or might not be executed. We think that the District Judge was wrong in holding that the mere passing of a decree cast on the appellant the duty of paying the money and applying for execution on his own decree on peril of his decree being barred, if he did not do so within three years.

5. Mr. Sambasiva Rao for the respondent does not seriously support the judgment of the District Judge on this question. He, however, raised two points and seeks to support the judgment on other grounds. The first point raised is that Order 21, Rule 91, makes the sale absolute and binding if not set aside by the auction-purchaser within 80 days and that in the present case the auction-purchaser not having done so, the decree in his favour was a decree which was not a proper decree to have been passed, and that as his client was exonerated, it is open to him to take the point that the original 'satisfaction recorded stands good as the sale has not been set aside in 30 days as required by the Civil Procedure Code and the Limitation Act. He also argues that Section 48 is a bar to the present proceedings. We do not think that in a case like this where the subsequent application is for entirely different reliefs, it can be treated as a continuation of the original application. To do so would be to allow the party to treat any application made subsequently as a continuation of the original application. If the respondent wants to contend that Section 48 is a bar to the present application as a fresh application for execution and not merely as a continuation; of the previous application, the appellant would be entitled to contend that by reason of fraud or any other reason which the law allows Section 48 would not apply.

6. As regards the contention that Order 21, Rule 91 bars any relief, the objection was not raised in the Courts below. Having regard to the decisions in Muthukumaraswami Pillai v. Muthuswami Thevan A.I.R. 1927 Mad. 394 and M. Jagannatha Rao v. R. Basavayya A.I.R. 1927 Mad. 835, we think the question is one which should be gone into, as it is clear that unless the appellant can prove fraud or any other abuse of the process of the Court the sale would be absolute and it will not be competent to the auction-purchaser to file a suit to recover the purchase money. We think the proper course will be to set aside the order of the District Judge as it was passed on grounds which we cannot support and remit the case to the District Munsif for decision as to whether Order 21, Rule 91 applies to the facts of the present case so as to bar the application for execution now presented and whether the present execution application is in time and not barred by Section 48, Civil P.C. It will be open to the parties to adduce fresh evidence in support of their contentions on either of these points.

7. As regards costs, as the appellant has substantially succeeded. and as we are sending the case on a point which was not taken in the Courts below, the respondent will pay the costs of the appeal here and in the lower appellate Court and the costs in the first Court will abide and follow the result.


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