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In Re: Bhagabuti Churn Bhuttacharjee Chowdhry and Vs. Bisheshwar Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal367
AppellantIn Re: Bhagabuti Churn Bhuttacharjee Chowdhry and ;bhagabuti Churn Bhuttacharjee Chowdhry
RespondentBisheshwar Sen and ors.
Cases ReferredTukaram v. Satvaji Khanduji I.L.R.
Excerpt:
sale in execution of decree - irregularity--code of civil procedure (act x of 1877), section 311. - .....i.l.r., 5 bom., 202 it was held that the purchaser's right to a sale-certificate accrues when the sale is confirmed; and in the case of tukaram v. satvaji khanduji i.l.r. 5 bom. 206 it was held that a purchaser who has not obtained a certificate is not entitled to ask the court to put him in possession of the property. now, on the 20th january 1881, the appellant could not have obtained a certificate, because the sale to him had not on that date been confirmed. he was, therefore, not in a position to ask the court to put him in possession of the property; and we think that the words 'any person whose immoveable property has been sold' must be understood to refer to property do facto and not to property de jure. were it to be otherwise decided, it would follow that any person who alleges.....
Judgment:

McDonell, J.

1. This case has been argued at very considerable length, and a large amount of irrelevant matter has, we think, been introduced into the argument. The facts are very simple. The appellant purchased, on the 21st July 1880, at a sale held in execution of a money-decree. That sale was not confirmed till the 19th February 1881. Meanwhile, the same property was sold, on the 20th January 1881, in execution of a decree obtained upon a mortgage-bond, by which the property so sold was pledged, that decree declaring the lien and authorizing the mortgagee to enforce it. The appellant claims to come in under Section 311 of the Code of Civil Procedure, and he questions the regularity of the proceedings under which the sale of the 20th January 1881 took place.

2. Now, the only question which has to be decided is, whether the appellant, who had been the successful bidder at the sale of 21st July 1880, but the sale to whom was not confirmed till the 19th February 1881, can be said to be, within the meaning of Section 311, a 'person whose immoveable property was sold' upon the 20th January 1881.

3. It appears to us that this question must be answered in the negative. There can be no doubt that the words 'any person whose immoveable property has been sold' are not to be restricted to the judgment-debtor alone. That has been decided in Krishnarav Venkatesh v. Vasudev Anant 11 Bom. H.C. Rep. p. 15 and the same point has been several times decided in the same way in this Court. But we think it impossible to say, that a person the sale to whom has not been confirmed is, within the meaning of Section 311, a 'person whose immoveable property has been sold.' In the case of Khaja Putthanji I.L.R., 5 Bom., 202 it was held that the purchaser's right to a sale-certificate accrues when the sale is confirmed; and in the case of Tukaram v. Satvaji Khanduji I.L.R. 5 Bom. 206 it was held that a purchaser who has not obtained a certificate is not entitled to ask the Court to put him in possession of the property. Now, on the 20th January 1881, the appellant could not have obtained a certificate, because the sale to him had not on that date been confirmed. He was, therefore, not in a position to ask the Court to put him in possession of the property; and we think that the words 'any person whose immoveable property has been sold' must be understood to refer to property do facto and not to property de jure. Were it to be otherwise decided, it would follow that any person who alleges that he has a good title to property which is in the possession of another person, might claim to come in and object under Section 311, and the result would be, that the Court would have to enter upon an enquiry which ought to form the subject of a separate suit. We think this could not have been the intention of the Legislature: and we are of opinion, therefore, that the appellant was not entitled to come in under Section 311, and question the regularity of the proceedings under which the sale of the 20th January 1881 was held. As to what may be his rights in a separate suit, we pronounce no opinion.

4. This appeal must be dismissed with costs.


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