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Paresh Nath Mallick Vs. Hari Charan Dey - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal622
AppellantParesh Nath Mallick
RespondentHari Charan Dey
Cases ReferredMalkarjun v. Narhari
Excerpt:
execution of decree - sale--application to set it aside--fraud should be definitely established--irregularity, how far it affects auction-purchaser--second application for setting aside sale, if it lies. - .....have subsequently show, found that though the defendant was not present the summons had been duly served. the purchaser was entitled to rely on that finding. he had not the opportunity or the means of questioning the propriety of the decision at which the court had arrived when it determined that the conditions were established entitling it to pass an ex prate decree: and the court should have much hesitation in visiting a purchaser at one of its sales with the consequences of an irregularity or defect of procedure which was not discovered by the court, or its officers, and was not apparent on the face of the record. the position then is that under a decree, to all appearances in order, the present appellant became a purchaser. why is he to be deprived of the benefit of his purchase? i.....
Judgment:

Lawrence H. Jenkins, C.J.

1. This appeal arises out of an application to set aside a sale held in execution of a decree for money. This decree was passed ex parte in 1903 and on the 12th of February, 1906, there was a sale in execution of this decree at which the appellant before us became the purchaser. It is this sale that is now impugned. On the 17th of May, 1906, an application was made to have the decree set aside, and on the 21st of May an application was made to have the sale set aside. On the 19th of August this application to have the sale set aside was dismissed, and though an application was subsequently made for its restoration that application was rejected. On the 1st of September, 1906, the decree was set aside, and the suit was restored, with the result that a modified decree was passed in the plaintiff's favour. On the 5th of February 1909, the present application was made to have the sale set aside.

2. I may deal with one point at once. It is the suggestion that there is fraud in this case. That suggestion is based upon a remark by the Munsif to this effect: 'the auction-purchaser is in no way connected with the fraud proved in this case.' Though the Munsif there implies that there was fraud, there is nothing in his judgment which justifies the conclusion of fraud. The view that there was fraud manifestly did not find favour with the District Judge, because he makes no reference to it and there is nothing direct or indirect in his judgment that suggests that he thought there was fraud. The fact is that the word fraud is very loosely used in this class of cases; any irregularity is taken to be fraud with the consequence that such a finding involves. But a finding of fraud should be reserved for that which is dishonest and morally wrong: and it is not sufficient to come to a vogue general finding of fraud; actual fraud must be established. In this view of the case it is unnecessary for me to consider the question that has been argued before us, whether, if there be fraud, an auction-purchaser is affected by it, though he himself may be innocent of the fraud. It is said that there is authority to that effect. But should the case arise for consideration, I think it would be undesirable for any Court to come to a conclusion upon that point, without having regard to what was laid down by their Lordships of the Privy Council in Lalla Bunseedhur v. Koonwur Bindesree Dutt Singh (1866) 10 Moo. I.A. 454, 473. The ground on which the decree of 1903 was set aside was that it was ex parte and the summons had not been served. Therefore, those conditions were established which entitled the aggrieved defendant to have the decree set aside under Section 108. But though the decree was thus set aside in September, 1906, the Court could not have passed its decree in 1903 without holding that the summons had been duly served: that is the condition laid down by Section 100 of the Civil Procedure Code of 1882. So we have this position that the Court wrongly, as events have subsequently show, found that though the defendant was not present the summons had been duly served. The purchaser was entitled to rely on that finding. He had not the opportunity or the means of questioning the propriety of the decision at which the Court had arrived when it determined that the conditions were established entitling it to pass an ex prate decree: and the Court should have much hesitation in visiting a purchaser at one of its sales with the consequences of an irregularity or defect of procedure which was not discovered by the Court, or its officers, and was not apparent on the face of the record. The position then is that under a decree, to all appearances in order, the present appellant became a purchaser. Why is he to be deprived of the benefit of his purchase? I have already said there was no fraud to which he could have been a party. At the same time it is the policy of the Court and a very wise policy to protect its purchasers, for although in an individual case there may be some hardship, it would be far more prejudicial to the general body of judgment-debtors that any doubts should be thrown upon titles acquired by purchasers in execution under decrees which are to all appearances in order and free from objection. The decree under which the appellant bought was not a nullity, it stood until it was set aside, and so the doctrine laid down in Khiarajmal v. Daim (1904) I.L.R. 32 Calc. 296, has no application. On the contrary what was said by the Privy Council in Malkarjun v. Narhari (1900) I.L.R. 25 Bom. 337 : L.R. 27 I.A. 216, is apposite. Lord Hobhouse there said, 'It was contended that the person served was not the right person, but the Court having received his protest decided that he was the right person, and so proceeded with the execution; and in so doing the Court was exercising its jurisdiction. It made sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right, and that course is not taken the decision, however wrong, cannot be disturbed,' So here, as I have already indicated, the Court decided in 1903 that there was sufficient proof of the service of summons. It was entitled so to decide, and the purchaser was entitled to rely on that decision.

3. In the circumstances it appears to me that there is no sufficient ground on which the purchase by the appellant, an innocent purchaser for value, should be disturbed, and I therefore hold the decree of the lower Appellate Court should be reversed and the application dismissed.

4. The appellant is entitled to hip costs in all the Courts.


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