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Sati Nath Alias Sitanath Sikdar and ors. Vs. Ratanmani Naskar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.200
AppellantSati Nath Alias Sitanath Sikdar and ors.
RespondentRatanmani Naskar and ors.
Excerpt:
execution - purchaser from decree-holder, position of--sale subsequently set aside with notice to decree-holder--refund of price. - .....purchased from one aditya chakravarti he was a decree-holder who purchased the property at a sale held under his decree. after his sale to the plaintiff, the court sale was set aside on notice to aditya but in the absence of and without notice to the plaintiff.2. it is conceded that the plaintiff is not in the position of a stranger who has purchased at a court sale and who is pleading a bona fide purchase without notice; and, it is conceded, he is, therefore, a person taking through the decree-holder purchaser at the sale and standing in the same position as the decree-holder. the question, therefore, before us is whether or not we should treat the order setting aside the execution sale as a nullity or as a mere irregularity. if it was a nullity, then of course the plaintiff's.....
Judgment:

George Woodroffe, J.

1. The plaintiff seeks in the first place to recover possession of a property purchased from one Aditya Chakravarti He was a decree-holder who purchased the property at a sale held under his decree. After his sale to the plaintiff, the Court sale was set aside on notice to Aditya but in the absence of and without notice to the plaintiff.

2. It is conceded that the plaintiff is not in the position of a stranger who has purchased at a Court sale and who is pleading a bona fide purchase without notice; and, it is conceded, he is, therefore, a person taking through the decree-holder purchaser at the sale and standing in the same position as the decree-holder. The question, therefore, before us is whether or not we should treat the order setting aside the execution sale as a nullity or as a mere irregularity. If it was a nullity, then of course the plaintiff's title is made out; if, however, it was an irregularity then the plaintiff's remedy was in the execution Court to set aside the proceedings which were held in his absence. I think, however, that it has not been made out that it was a nullity and that this is so is shown by the fact that there is no doubt that the proceedings were held on notice to Aditya. Therefore, they were good proceedings as regards him, and the plaintiff claims through him. Possibly if the plaintiff had gone to the execution Court and had represented to that Court that Aditya having disposed of his interest was no longer concerned in the matter and that he should be made a party to these proceedings, the Court might have acceded to his request. But the fact that the proceedings were held in the absence of the plaintiff would not make them a nullity, seeing that they were held in the presence of a person through whom he claims, namely, Aditya. Therefore, on this ground the suit, so far as it is a suit for possession as against defendants Nos. 1 to 8, fails and must be dismissed with costs in all Courts.

3. There is, however, au alternative relief sought by the prayer (gha) of the plaint. The plaintiff says: If the plaintiff be not held by the Court to be entitled to recover khas possession, then in that case he prays that he may have a decree directing refund of the consideration money by the pro forma defendants Nos. 9 to 12, and payment of the sum of Rs. 10 as compensation on account of cultivation expenses. As regards the latter part of this claim we know nothing, and there is no mention of it in the judgment. But as regards the consideration money which amounts to Rs. 95, the plaintiff is entitled to a decree for that sum against the defendants Nos. 9 to 12 with interest thereon at six per cent, per annum from the date of the suit to the date of realization. It does not appear that these defendants have taken any part in the suit in any of its stages, and, therefore, though the suit is decreed as against those defendants, the decree will not carry any costs.

4. The appeal is allowed in these terms.

Mookerjee, J.

5. I agree.


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