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Abdul Kader Vs. Ambika Charan Bhuiya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1927Cal57,97Ind.Cas.697
AppellantAbdul Kader
RespondentAmbika Charan Bhuiya and ors.
Cases Referred and Ganapathy Mudaliar v. Krishnamachariar
Excerpt:
- .....in connexion with which the present application was filed took place on the 15th may 1923. the decree-holder purchased the property which had been put up to sale in execution of the decree the sale was confirmed on the 25th june 1923. on the 9th june 1923 the judgment-debtors put in an application under order 21, rule 90 for setting the sale aside. this application was dismissed for default on the 18th august 1923. the decree-bolder auction-purchaser thereafter applied for delivery of possession and possession was delivered to him on the 5th january 1924. on the 23rd january 1924, another application was filed by the judgment-debtors purporting to be under section 47, civil p.c., and order 21, rule 90 of that code, in so far as it purported to be an application under order 21, rule.....
Judgment:

1. This appeal is directed against the appellate order of the Additional District Judge of Howrah by which he set aside the order passed by the Court of first instance dismissing the application of the appellant under Section 47, Civil P.C., and Order 21, Rule 90 of that Code and directed further investigation into matters which arose on that application in so far as it purported to be one under Section 47 of the Code. The decree in connexion with which the execution proceedings were started was passed in 1910. There were several execution proceedings with which we are not concerned at the present stage, but the sale in connexion with which the present application was filed took place on the 15th May 1923. The decree-holder purchased the property which had been put up to sale in execution of the decree the sale was confirmed on the 25th June 1923. On the 9th June 1923 the judgment-debtors put in an application under Order 21, Rule 90 for setting the sale aside. This application was dismissed for default on the 18th August 1923. The decree-bolder auction-purchaser thereafter applied for delivery of possession and possession was delivered to him on the 5th January 1924. On the 23rd January 1924, another application was filed by the judgment-debtors purporting to be under Section 47, Civil P.C., and Order 21, Rule 90 of that Code, in so far as it purported to be an application under Order 21, Rule 90 it challenged the validity of the sale upon the ground of material irregularity and fraud. In so far as it was under Section 47, Civil P.C., it challenged the validity of the execution proceedings. It was stated in the first instance that the decree had been satisfied by payment out of Court and that the decree-holder, in contravention of the agreement entered into between himself and the judgment-debtors applied for execution of the decree.

2. The other ground was that the application for execution was barred by limitation and that the previous execution proceedings which were alleged to have been taken by the decree-holder were fictitious, and further more, that the decree-holder had fraudulently mentioned in his application for execution that he had in the meantime received a payment of Rs. 3 towards satisfaction of his decree. This application, as I have stated, was filed on the 23rd January 1924. On the 11th February 1924, the learned Munsif rejected the application. The order which he passed on that date shows that he was of opinion that the application under Order 21, Rule 90 was not entertain able as the previous application filed on the 9th June 1923 had been dismissed for default and that the application in so far as it purported to come under Section 47 of the Code was not entertain able as the execution had already come to an end. This order was not challenged or sought to be set aside either by an application for review or by an appeal, and. on the 29th February 1924, another application in precisely the same terms as the application of the 23rd January was filed and it also purported to be under Section 47 and, Order 21, Rule 90 of the Code. On the 20th September 1924, this application was dismissed by the learned Munsif he being of opinion that the execution proceeding's having come to an end no application under Section 47 lay, that the decree-holder was the auction-purchaser and notwithstanding that that was so the application should be treated as raising points between the judgment-debtor on the one hand and the auction-purchaser on the other, and therefore, the application could not be treated as one under Section 47 and furthermore, that the application to set aside the sale was not maintainable by reason of the fact that the previous application for the same purpose had already been dealt with and rejected by the Court.

3. Against this order the judgment-debtors preferred an appeal and the learned Additional District Judge was of opinion that the application to set aside the sale was not maintainable because of the rejection of the previous application for the same purpose, but in so far as the validity of the execution proceedings had been challenged on the ground of fraud and limitation the application was maintainable, because the view taken by the learned Munsif that no such application lay after the termination of the execution proceedings was not correct. He was further of opinion that although no appeal had been preferred against the order rejecting the previous application and passed on the 11th February 1924, and although no steps had been taken by the judgment-debtor to have that order reviewed or cancelled the learned Munsif when he entertained the fresh application of the 29th February 1924, must be taken to have exercised some inherent jurisdiction which lay in him and when he treated the order of rejection passed by him as a nullity the judgment-debtors were competent to proceed with the application. Against this order the present appeal has been preferred by the decree-holder.

4. It is clear, therefore, that what is before us now, is only that part of the application which relates to the validity of the execution proceedings and challenges the same on the ground of limitation and fraud. In support of this appeal several grounds have been urged on be-half of the appellant.

5. The first contention is to the effect that the application should not be treated as one coming under Section 47, Civil P.C. So far as this contention is concerned the appellant obviously is in some difficulty because if this contention is accepted it is clear that the appeal before us is incompetent. The contention, however, does not appear to be well-founded. It rests upon two grounds. It is said, first of all that as the decree has already been satisfied and possession taken by the decree-holder as auction-purchaser the executing Court is functus officio and any application presented before that Court challenging the validity of the execution proceedings cannot be regarded as an application under Section 47 of the Code. In support of this proposition reliance has been placed upon a decision of this Court in the case of Fakaruddin Mahomed Ahsan v. Official Trustee of Benyal [1884] 10 Cal. 538. There is in the judgment of that case at page 540 a dictum which may to construed as laying down a broad proposition to the effect that an application under Section 244 of the old Code must be made in the executing Court during the pendency of the execution proceedings. This dictum however, has not been accepted in its entirety in any of the more recent decisions, and in the case of Nilratan Khasnabish v. Ram Rutton Chatterji [1901] 5 C.W.N. 627 the case in Fakaruddin Mahomed Ahsan v. Official Trustee of Bengal [1884] 10 Cal. 538 has been distinguished upon the ground that the dictum to which I have referred is applicable to a case where as a result of contested proceedings a final order has been passed in the execution proceedings and after the execution proceedings are over a further attempt is made by the judgment-debtor by a separate application to re open those proceedings. This ground, therefore, upon which the contention is based does not appear to be supported by any authority.

6. The other ground upon which this contention is based is to the effect that the decree-holder having himself purchased at the auction the question which arises is to be treated as a question not between the judgment-debtor on the one band and. the decree-holder on the other, but between the judgment-debtor and the auction-purchaser. In support of this position reliance has been placed upon the Full Bench decision of the Allahabad High Court in Bhaqwati v. Banwari Lal [1901] 5 C.W.N. 627. On behalf of the respondents it has been tirged that this position is not maintainable in view of the recent Full Bench decision of this Court in Niran Ranjan Mukherjee v. Soudamini Dasi A.I.R. 1926 Cal. 714 (F.B.). It is not necessary to refer to or discuss the judgments in those two cases in detail, for it seems to me that the present case cannot be taken to be governed by either of these two cases. In the Allahabad case as well as in the Full Bench case of this Court the question arose in this way the decree-holder had purchased, at the auction held in execution of his own decree. Questions arose which related to the delivery of possession in consequence of such purchase, and it was contended that the questions relating to the delivery of possession were not questions which related to the execution, discharge or satisfaction of the decree, and, nextly, it was contended that those questions which related to delivery of possession as between the judgment-debtor on the one hand and the auction-purchaser on the other could not be regarded as questions arising between the parties to the suit because the decree-holder by making the purchase had lost his character as decree-holder and assumed a new character, namely, that of an auction-purchaser.

7. In the present case there can be no question that the matters which have to be considered upon the present application are matters relating to execution, discharge and satisfaction of the decree. They are undoubtedly matters which arise as between the judgment-debtor and the decree-holder, and the only question is whether because the decree-holder has become the auction-purchaser these questions should no longer be regarded as being between the judgment-debtor and the decree-holder. If anything, the present case seems to be somewhat like a case converse to the case dealt with in, the aforesaid two cases. There is authority for the proposition that when the question which arise, is really a question between the judgment-debtor and the decree-holder, even if a stranger has made the purchase and is affected by the determination thereof the question remains still one under Section 47 of the Code see Prosunno Kumar Sanyal v. Kasi Das Sanyal [1892] 19 Cal. 683 and Ganapathy Mudaliar v. Krishnamachariar [1918] 41 Mad. 403. I am clearly of opinion that these questions relate to execution of the decree and they arise as between the judgment-debtor and the decree-holder, and the mere fact that the decree-holder has become the auction-purchaser does not take these matters out of the purview of Section 47 of the Code. The first contention, therefore, urged on behalf of the appellant fails.

8. The second contention is to the effect that the application on the face of it is barred by limitation. In so far as it purports to be an application under Order 21, Rule 90 it is governed by Article 166 of the Limitation Act. But that portion of the application has no longer to be considered. What we have to consider is the application in so far as it purports to come under Section 47. 1Ihere is no period of limitation prescribed for such an application; now it must be governed by the residuary article and it does not appear that the application is barred by limitation. The second ground urged on behalf of the appellant also cannot prevail.

9. The third ground seems to be of more substance. It is to the effect that the present application is barred by reason of the dismissal of the previous application on the 11th February 1924. The reason given by the learned Judge in his judgment so far as this matter is concerned as I have stated is that the learned Munsif who entertained this application exercised some inherent jurisdiction and in entertaining the application he should be taken to have regarded his own order of rejection previously passed as a nullity. It is said that the previous order was passed without hearing the applicant. There are no materials upon the record from which such a conclusion may be arrived at. But even if it be assumed that it was so, there was that order of rejection passed by the Court and unless and until that order was set aside either by an application for review or by appeal it is difficult to see how the Court could subsequently entertain a fresh application dealing with the same matter, and in such a case I am of opinion that it cannot be said that the Court has got any inherent jurisdiction to treat his previous order as a nullity.

10. I am, therefore, of opinion that the order passed by the District Judge should be reversed on this last ground to which I have referred. In my opinion, therefore, the appeal succeeds on this ground and the order of the learned District Judge should be set aside and that of the learned Munsif restored with costs.

Greaves, J.

11. I agree.


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