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Chunder Coomar Roy Vs. Gour Chunder Biswas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal291
AppellantChunder Coomar Roy
RespondentGour Chunder Biswas
Cases ReferredKhiroda Mayi Dasi v. Golam Ahardari
Excerpt:
damages for neglect to pay road cess or public works cess - beng. act x of 1871, section 25--beng. act viii of 1869, section 44. - .....to sale and default made in payment of the purchase-money, the court was bound, having ordered the resale of the jama upon such default, to carry out such resale and to recover the difference between the amount bid upon the sale and the amount bid upon the resale from the defaulter before the decree-holder could proceed to sell the other property, viz., the hat. a third point is now taken before us, viz., that the publication of the sale-notification was insufficient, because such notification was not posted upon any place in the hat itself or adjacent thereto; and it is said that the place where the notification was published was a mile-and-half distant from the hat.2. as to the first ground taken before the munsif we think that his decision is correct. as to the additional point raised.....
Judgment:

Field, J.

1. In this case the two points which appear to have been raised before the Munsif were: first, that no sale-notification had been published upon the property sold; and secondly, that because the jama had been originally put up to sale and default made in payment of the purchase-money, the Court was bound, having ordered the resale of the jama upon such default, to carry out such resale and to recover the difference between the amount bid upon the sale and the amount bid upon the resale from the defaulter before the decree-holder could proceed to sell the other property, viz., the hat. A third point is now taken before us, viz., that the publication of the sale-notification was insufficient, because such notification was not posted upon any place in the hat itself or adjacent thereto; and it is said that the place where the notification was published was a mile-and-half distant from the hat.

2. As to the first ground taken before the Munsif we think that his decision is correct. As to the additional point raised before us, we think that the appellant cannot be permitted to raise this point, which was not raised specifically in the Court below. It remains to deal with the third point. The facts appear to be these. The jama and the hat were attached under the original application for execution. On the 15th January, the jama was sold for Rs. 350, which amount was sufficient to satisfy the [294] decree. The person who was the successful bidder at this sale having made default in paying the balance of the purchase-money, a re-sale of the jama was then directed. On the 17th March the jama was put up for resale, and the highest bid was Rs. 15. This amount being insufficient to satisfy the decree, the hat was then sold for Rs. 1,000. It appears that the sale of the jama was then cancelled.

3. It has been said in the course of argument, that of this fact there is no evidence upon the record; that this was done out of kindness to the judgment-debtor, inasmuch as the price bid for the hat was sufficient to satisfy the decree. Now, it is contended in the first instance that, until the difference between the 15 rupees, which was bid for the jama on the resale, and Rs. 350, the amount for which the defaulter purchased at the sale, was realized from the defaulter Dhanunjoy, the decree-holder was debarred from proceeding with the sale of the other property, which had been attached upon the original application. In support of this contention the case of Joy Chunder Biswas v. Kali Kishore Dey Sircar S.C.L.R. 41 has been quoted. It does not appear from the report whether the sixteen annas of the property sold in that case upon the second occasion, instead of the five gandas sold upon the first occasion, were included in the original application for execution and were attached under that application. It is therefore not possible for us to say that that case is on all fours with the present case. There is, however, a decision in the case of Khiroda Mayi Dasi v. Golam Ahardari 13 B.L.R. 114; s.c. 21 W.R. 149 which is exactly on all fours with the present case, for there both properties were attached under the original application for execution. We think that we ought to follow this last-quoted case, which, we may further add, is in accordance with our view of the law. Were it otherwise, we think that, inasmuch as the appellant did not make to the Munsif any application under the second part of Section 293 to have the difference between the proceeds of the sale and the resale recovered from the defaulter, he ought not to be allowed to succeed upon the point which he has raised upon this appeal; and we may further observe that, [298] in the petition of objection which he put in before the Munsif, he silently acquiesced in the cancelment of the resale of the jama. The effect of cancelling that sale was to preclude the recovery from the defaulter Dhanunjoy of the difference between the amounts bid at the sale and resale. On all these grounds we think that this appeal must be dismissed with costs.


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