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Mothura Mohun Ghose Mondul Vs. Akhoy Kumar Mitter - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal558
AppellantMothura Mohun Ghose Mondul
RespondentAkhoy Kumar Mitter
Cases ReferredRewa Mahton v. Ram Kishen Singh
Excerpt:
sale in execution of decree - suit to set aside sale--fraud--auction-purchaser acting bona fide--fraudulent execution of decree after adjustment--execution of decree adjusted, but of which satisfaction has not been entered, effect of, on rights of innocent purchaser--adjustment of decree without certifying. - 1. this was a suit to set aside a sale in execution on the ground of fraud. the facts are that in 1880 defendant no. 2 brought a suit against the plaintiff for a half share of a certain jumma, and on the 31st january 1881 he obtained a decree for a four annas share with costs. subsequently an amicable settlement was come to between the parties, by which the plaintiff gave up the half share of the jumma which was claimed, and defendant no. 2 relinquished his decree for costs. this arrangement, however, was not certified to the court.2. on the 23rd january 1884 an application was made to the court to execute the decree for costs, and in pursuance of that application a one-third share in a certain tank belonging to the plaintiff was brought to sale and purchased by defendant no. 1 on the.....
Judgment:

1. This was a suit to set aside a sale in execution on the ground of fraud. The facts are that in 1880 defendant No. 2 brought a suit against the plaintiff for a half share of a certain jumma, and on the 31st January 1881 he obtained a decree for a four annas share with costs. Subsequently an amicable settlement was come to between the parties, by which the plaintiff gave up the half share of the jumma which was claimed, and defendant No. 2 relinquished his decree for costs. This arrangement, however, was not certified to the Court.

2. On the 23rd January 1884 an application was made to the Court to execute the decree for costs, and in pursuance of that application a one-third share in a certain tank belonging to the plaintiff was brought to sale and purchased by defendant No. 1 on the 19th May 1884, Possession was not taken, however, till 12th June 1886, and on the 9th July 1886 plaintiff filed this suit to have the whole of the execution proceedings set aside on the ground of fraud, and to recover possession of the tank. The fraud in question is alleged to have been perpetrated at the instance of defendant No. 3 (to whom the tank in question formerly belonged) through the instrumentality of defendant No. 4. The pro forma defendants Nos. 5 and 6 are the plaintiff's co-sharers in the tank.

3. The first Court found the fraud established, and set aside the sale.

4. On appeal, the District Judge reversed this decision. He considered that the evidence did not justify the finding that the execution proceedings were fraudulently instituted and carried through. He was of opinion that the matter was capable of a more simple explanation. He found apparently that the execution of the decree was taken out by defendant; No. 4 without the knowledge of defendant No. 2, but that the notices, &c;, were duly served, and that the property was not sold for an inadequate price. He seems to have been of opinion that the suit of 1880 having been managed for defendant No. 2 (who is an illiterate person) by defendant No. 4, execution was taken out by the Titter in good faith, as the decree was about to become barred by limitation. 'The only conclusion really justified by the evidence, he says, is that Khetter Mohun's (defendant No. 4) action was unauthorized and illegal, and that there is every ground for a criminal action against him. But there is no proof that the, purchase by Akhoy (defendant No. 1) was in any way tainted with fraud. The sale appears to have been duly held, and there is no evidence to show satisfactorily that the notices were not legally served. ******* I find that Akhoy Kumar Mitter's purchase was an innocent one, and untainted with fraud, and that, therefore, the purchase by him in open Court cannot be set aside.'

5. Against this decision the plaintiff has preferred this second appeal; and it is contended before us that, accepting the facts as found by the Judge, the sale was void and should be sat aside-first, because the decree had already been satisfied by compromise; and, secondly, because the execution proceedings were not taken as the instance of the real decree-holder. In support of the first argument, the appellant relies on the case of Pat Dasi v. Sharup Chand Malta 14 C. 376. In that case it was found that the decree had been satisfied, though satisfaction had not been certified to the Court, and a Division Bench of this Court held that the sale under this satisfied decree was void and of no effect. There is no finding whether the auction-purchaser was a party to the fraud ; if he was, that in itself would have been a good ground for decreeing the plaintiff's suit. But if he was not, we are compelled to say that, having regard to the judgment of the Privy Council in Rewa Mahton v. Ram Kishen Singh 13 I.A. 106 : 14 C. 18, we are unable to agree in the view taken by the learned Judges who decided that case. In the case just referred to, their Lordships of the Privy Council held that where a person purchased bona fide, and for value, property exposed for sale under an execution issued by a Court of competent jurisdiction upon a valid judgment, 'the sale is a good one and cannot be set aside.' If the Court has jurisdiction, they say, 'a purchaser is no more bound to enquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which the execution issues.'

6. We are of opinion that the sale could only be set aside in the present case if it were shown that the Court had no jurisdiction. But it does not follow that the Court had no jurisdiction, because the decree had been compromised out of Court. The compromise not having been certified to the Court, the decree remained, so far as the Court was concerned, an unsatisfied decree, capable of being executed, and the Court had jurisdiction to execute it. Neither can it be held that the execution proceedings were void, because they were instituted by a person who had no authority to institute them. They were instituted in the name of the decree-holder, and we are of opinion that neither the Court nor the auction-purchaser was bound to enquire whether the application was made by the real judgment-creditor. The Court having jurisdiction to sell the property, and the respondent's purchase being untainted with fraud, we are of opinion that the appellant cannot have the sale set aside, and recover back that property. At the same time we are not prepared to say that he may not have some other remedy open to him.

7. The appeal must be dismissed with costs.


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