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Fazal Rahaman and anr. Vs. Imam Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal583
AppellantFazal Rahaman and anr.
Respondentimam Ali and anr.
Excerpt:
sale for arrears of revenue - act xi of 1859, section 36--certified purchaser, suit against--civil procedure code--act xiv of 1882, section 317. - .....to the purchaser; and then section 317 provides that 'no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf on any other person or on behalf of some one through whom such other person claims.' it will be observed that sections 316 and 317 find their place in the chapter on execution of decrees, part g. of which is headed 'of sale and delivery of property,' that is to say, sales in execution of decrees of civil courts, and therefore it is obvious that section 317 can have no application to any other kind of sale than sales in execution of decrees of civil courts held under the procedure code. that being so, it seems to us that we must decide this case with reference to the provisions of act xi of 1859, under which the sale,.....
Judgment:

Ghose, J.

1. We think that Section 317 of the Code of Civil Procedure has no application to the present case. Upon an examination of the Code it will be found that the preceding section, that is Section 316, refers to sales of immoveable property held under the provisions of the Code, and it provides that after a sale has become absolute a certificate of sale is to be given to the purchaser; and then Section 317 provides that 'no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf on any other person or on behalf of some one through whom such other person claims.' It will be observed that Sections 316 and 317 find their place in the chapter on Execution of Decrees, Part G. of which is headed 'Of Sale and Delivery of Property,' that is to say, sales in execution of decrees of Civil Courts, and therefore it is obvious that Section 317 can have no application to any other kind of sale than sales in execution of decrees of Civil Courts held under the Procedure Code. That being so, it seems to us that we must decide this case with reference to the provisions of Act XI of 1859, under which the sale, with which we are concerned, took place.

2. Now Section 36 of that Act runs thus: 'Any suit brought to oust a certified purchaser as aforesaid, on the ground that the purchase was made on behalf of another person not the certified purchaser, or on behalf partly of himself and partly of another person, though by agreement the name of the certified purchaser was used, shall be dismissed with costs,'

3. The question that arises upon this section is, whether or not the present suit is a suit to oust the certified purchaser. Now, looking at the plaint (and for the purpose of the question we have before us we must confine ourselves chiefly to the plains), it is quite clear that this is not a suit to oust the certified purchaser; for what the plaintiffs allege is that they are in possession, and all that they seek by this suit is to have specific performance of the contract that was entered into between them and the defendants at the time when the sale took place. And it seems to us to be also equally clear that the result of a decree, if made in favor of the plaintiffs, would not be to oust the defendants; for the plaintiffs would not be entitled, in execution of the decree, to be put in possession of the property in question.

4. That being so, it appears to us that the present suit is not barred by the provisions of Section 36 of Act XI of 1859, and, unless it be dearly shown to come within the scopes of that section, we should not be justified in dismissing it on the ground taken by the lower Courts. For these reasons, we think that the decrees of the Courts below must be set aside, and the case remanded to the Court of first instance to be tried upon its merits. The costs will abide and follow the result.


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