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Lingam Krishna Bhupatt Devu Garu Vs. Jogani Venkataswamy - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in33Ind.Cas.235
AppellantLingam Krishna Bhupatt Devu Garu
RespondentJogani Venkataswamy
Excerpt:
civil procedure code (act v of 1908), sections 47 and 115, order xxi, rule 93 - execution sale set aside--order to refund purchase-money to third party purchaser, whether relating to execution, discharge or satisfaction of decree--appeal--practice--poundage, order to refund, to auction-purchaser--no notice to judgment-debtor--revision--jurisdiction--poundage, whether can be considered as having been paid to judgment-debtor, on setting aside of auction, sale. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall.....1. we do not think that an order under order xxi, rule 93, of the code of civil procedure in favour of a third party purchaser is a question between the parties to the suit relating to the execution, discharge, or satisfaction of the decree, as that order by itself has no legal effect on the rights and liabilities as between the decree-holder and the judgment-debtor.2. the preliminary objection that no appeal lies must, therefore, he upheld.3. we are asked to treat the appeal as a revision petition under section 115 of the code of civil procedure, and we use our discretion under the circumstances in the appellant's favour in accordance with his request.4. it is clear that the appellant (judgment-debtor) did not get any notice to show cause why he (the judgment-debtor) should not be held.....
Judgment:

1. We do not think that an order under Order XXI, Rule 93, of the Code of Civil Procedure in favour of a third party purchaser is a question between the parties to the suit relating to the execution, discharge, or satisfaction of the decree, as that order by itself has no legal effect on the rights and liabilities as between the decree-holder and the judgment-debtor.

2. The preliminary objection that no appeal lies must, therefore, he upheld.

3. We are asked to treat the appeal as a revision petition under Section 115 of the Code of Civil Procedure, and we use our discretion under the circumstances in the appellant's favour in accordance with his request.

4. It is clear that the appellant (judgment-debtor) did not get any notice to show cause why he (the judgment-debtor) should not be held liable to pay the poundage fees to the purchaser at the cancelled sale. The order passed against him was, therefore, passed through the Court's acting illegally and with material irregularity in the exercise of its jurisdiction and ought to be set aside, especially as the purchaser did not pray for the refund of the poundage from the judgment-debtor. It is, again, very doubtful whether the judgment-debtor (who was not the party at whose instance the sale was held, though he was the person at whose instance the sale was set aside) could be considered to be a person to whom the poundage money (which is deposited in Court) 'has been paid' (Order XXI, Rule 93, of the Code of Civil Procedure). It, is, however, unnecessary to express a final opinion on that point for the decision of this case.

5. The order of the lower Court is set aside and the petition to the lower Court will stand dismissed. There will be no order as to costs in either Court.


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