Skip to content


Asmutunnissa Begum Vs. Ashruff Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal488
AppellantAsmutunnissa Begum
RespondentAshruff Ali and ors.
Cases Referred and Rakal Chunder Bose v. Dwarka Nath Misser
Excerpt:
civil procedure code (act xiv of 1882), section 311 - objection to sale by wife of judgment debtor--execution. - .....direct result of the irregularity, and that this could only be the case where the property of the person applying had not only been put up for sale and knocked down, but had been sold in the sense that the applicant's interest had been legally affected by such sale, as in the case of krishnarav venkatesh v. vasudev anant 11 b.h.c. 15, but that a person claiming by title paramount to the judgment-debtor is not within the meaning of the words 'any person' in the section, inasmuch as his title to the property is not affected by the sale, whether it were regular or irregular, and therefore cannot apply to the court to set aside the sale.4. on the whole we are of opinion that the decision of abdul huq mozumdar v. mohini mohun shaha 14 c. 240, cannot be sustained, but that the rule in joge.....
Judgment:

W. Comer Petheram, C.J.

1. This is an appeal from an order confirming the sale of immoveable property under a decree, notwithstanding an objection under Section 311 of the Civil Procedure Code, on the ground of irregularities. The objector was not the judgment-debtor, but was a person who claimed the property as her own, alleging that she had bought it of the judgment-debtor prior to the attachment. The question which we have to consider is whether such a person is entitled to object to a sale under Section 311.

2. The case of Abdul Huq Mozwndar v. Mohini Mohun Shaha 14 C. 240 is a clear authority that the words 'any person' in that section are to receive the widest meaning, and that any person whatever may come in and claim an interest in the property, and may apply under that section to set aside the sale. The earlier cases in this Court are under the section of the old Code, and take the opposite view.

3. The case of Krishnarav Venkatesh v. Vasudev Anant 11 B.H.C. 15 shows, and we think rightly shows, that the words any person were used intentionally to enable other persons than the judgment-debtor to apply if they were injured by the irregularity. Upon this slate of the authorities, we have to decide what is the meaning of the section. The words are 'any person whose immoveable property has been sold under this chapter may apply,' but the sale is not to be set aside unless the applicant proves that he has sustained substantial injury. We think that this means that the substantial injury must be the direct result of the irregularity, and that this could only be the case where the property of the person applying had not only been put up for sale and knocked down, but had been sold in the sense that the applicant's interest had been legally affected by such sale, as in the case of Krishnarav Venkatesh v. Vasudev Anant 11 B.H.C. 15, but that a person claiming by title paramount to the judgment-debtor is not within the meaning of the words 'any person' in the section, inasmuch as his title to the property is not affected by the sale, whether it were regular or irregular, and therefore cannot apply to the Court to set aside the sale.

4. On the whole we are of opinion that the decision of Abdul Huq Mozumdar v. Mohini Mohun Shaha 14 C. 240, cannot be sustained, but that the rule in Joge Narain Singh v. Bhugbano 2 W.R. Mis 13, followed in Mina Koer v. Luchman Bhuggat 1 C.L.R. 250 and Rakal Chunder Bose v. Dwarka Nath Misser 13 C. 346, as explained by the Bombay case, is correct. We therefore answer this question in the negative.

5. The result is that the appeal is dismissed with costs.


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