Skip to content


Gobinda Prosad Dalal Vs. Brindaban Chandra Nasipuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1937Cal7,167Ind.Cas.600
AppellantGobinda Prosad Dalal
RespondentBrindaban Chandra Nasipuri and ors.
Cases ReferredBulanda Bashini Debi v. Pran Govinda Dhar
Excerpt:
civil procedure code act (v of 1908), order xxi, rule 90, 54 - applicant getting order for attachment before judgment and subsequently a decree--sale of property held in execution of another decree--applicant, whether can apply under order xxi, rule 90 to set aside sale. - .....got a decree in his suit on 19th february 1934. he has not yet applied for execution of his decree. opposite parties nos. 2 and 3 brought a suit being money suit no. 1879 of 1932 of the court of the munsif at malda against opposite parties nos., 4 to 6, and obtained a decree. that decree they assigned to opposite party no. 1 who put it in execution and at the court sale himself purchased the same on 5th may 1934. thereafter the petitioner before me applied under order 21, rule 90 of the code to set aside this sale. his application has been dismissed by both the courts below on the ground that he has no locus standi to apply. it has to be considered whether the views of the courts below are correct or not.2. the petitioner before me placed his case on the footing that his interests.....
Judgment:
ORDER

R.C. Mitter, J.

1. The question involved in this Rule is whether the petitioner has the right to maintain an application under Order 21, Rule 90, Civil P.C., to set aside a Court sale at which Opposite Party No. 1 purchased the property of Opposite Parties Nos. 4 to 6. The facts are simple and are not disputed. The petitioner brought a suit to recover a sum of money from Opposite Parties Nos. 4 to 6 (Money Suit No. 70 of 1933 of the 2nd Court of the Munsif at Rampurhat). He applied for attachment before judgment of the property of Opposite Parties Nos. 4 to 6, which is the subject-matter of this Rule. He got an order in his favour from the Court and in March 1933 the peon went to the locality, proclaimed the prohibiting order by beat of drum and affixed a copy of the same on the property, but he omitted to affix a copy of the order on the notice board of the Court. The provisions of Order 21, Rule 54 of the Code accordingly were only partially complied with. The petitioner ultimately got a decree in his suit on 19th February 1934. He has not yet applied for execution of his decree. Opposite Parties Nos. 2 and 3 brought a suit being Money Suit No. 1879 of 1932 of the Court of the Munsif at Malda against Opposite Parties Nos., 4 to 6, and obtained a decree. That decree they assigned to Opposite Party No. 1 who put it in execution and at the Court sale himself purchased the same on 5th May 1934. Thereafter the petitioner before me applied under Order 21, Rule 90 of the Code to set aside this sale. His application has been dismissed by both the Courts below on the ground that he has no locus standi to apply. It has to be considered whether the views of the Courts below are correct or not.

2. The petitioner before me placed his case on the footing that his interests have been affected by the challenged sale, he being in the position of an attaching creditor of the judgment-debtors, Opposite Parties Nos. 4 to 6. Both the Courts below have negatived his claim to set aside the sale on the ground that he was not an attaching creditor, as there was no attachment in fact, the provisions of Order 21, Rule 54 being not fully complied with, inasmuch as the prohibitory order had not been affixed in a conspicuous part of the Court house. In my judgment the petitioner is entitled to succeed in this Rule. If the property had been in fact attached before judgment and thereafter, but before the sale in question the petitioner had obtained his decree, he would have had the right to apply for setting aside the sale. Besides the case in Gopinath Harischandra v. Kukari Protabchandra : AIR1934Cal477 (when however the creditor attaching before judgment had got his decree after the challenged sale) referred to in my judgment in Baidyanath Pande v. Hemlata Dasi : AIR1936Cal26 , the case in Venkatesha v. Villa Bhakta AIR 1933 Mad 455, is an express authority for this proposition. As the decree in Gopinath Harischandra v. Kukari Protabchandra : AIR1934Cal477 was obtained after the sale, I do not express any opinion however as to the correctness of the said decision. There cannot be however any question that there was no attachment before judgment in fact in the present case, because a copy of the prohibitory order was not affixed in the Court house: Nabadwip Chandra Das v. Lokenath Roy : AIR1933Cal212 and Sinnappa v. Arunachalam AIR 1920 Mad 804. In the face of the decision in Nabadwip Chandra Das v. Lokenath Roy : AIR1933Cal212 . I cannot follow the decision cited at the bar, namely Jodhan v. Kapilnath AIR 1923 Nag 78, a decision of the Additional Judicial Commissioner of Nagpur who held that in the case of a revenue paying property when the prohibitory order has been proclaimed by beat of drum on the property sought to be attached or on an adjacent property and affixed on the property but not affixed in a conspicuous part of the Collector's Office, the attachment is complete. But in my judgment the fact that there was in fact no attachment does not affect the position of the petitioner before me. He had certainly got an order for attachment and some part of the provisions of Order 21, Rule 54, had been complied with before the challenged sale. He subsequently, but before the challenged sale, got his decree.

3. On the principle which I have formulated in the judgment of Civil Revision Case No. 1653 of 1935 Bulanda Bashini Debi v. Pran Govinda Dhar reported in : AIR1936Cal547 , which I have just now delivered, which principle it is not necessary to repeat in this case, I hold that the petitioner had locus standi to maintain the application under Order 21, Rule 90 of the Code; and the Courts below in refusing to entertain the same have failed to exercise a jurisdiction vested in them by law. I accordingly make the Rule absolute, set aside the orders passed by the Courts below and remand the matter to the Court of first instance so that the application under Order 21, Rule 90, may be considered on its merits. Costs. to abide the final result. Hearing-fee 1 gold mohur.


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