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Gopi Chand Bothra Vs. Kasimunnessa Khatun - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal836
AppellantGopi Chand Bothra
RespondentKasimunnessa Khatun
Cases ReferredAbdul Karim v. Thakordas Tribhovan Das
Excerpt:
sale in execution of decree - sale by inferior court, of property attached by a superior court--juridiction--civil procedure code (act xiv of 1882) sections 284, 285. - .....effected by the court of a lower grade is a nullity. if the matter was res integra and apart from authority, my view would be that the jurisdiction conferred upon the court to sell by section 284 of the code of civil procedure is not taken away by the provisions of section 285. i think the language of section 285 is amply met by treating it as a directory section dealing with procedure, and not intended, to take away the jurisdiction which had been conferred by the previous section. this view enables us to give effect to both these sections of the code. if jurisdiction is given by one section of an act, and it is contended that it has been taken away by another and subsequent section, it must be shown by the clearest language that this has been done.2. but, so far as this court is.....
Judgment:

Francis W. Maclean, C.J.

1. I propose to deal with this case very shortly, because I think, so far as this Court is concerned, the matter is concluded by authority, and I have no desire to multiply them. The question in short, which we are asked to decide, is whether where the same property is under attachment by two Courts of different grades, a sale effected by the Court of a lower grade is a nullity. If the matter was res Integra and apart from authority, my view would be that the jurisdiction conferred upon the Court to sell by Section 284 of the Code of Civil Procedure is not taken away by the provisions of Section 285. I think the language of Section 285 is amply met by treating it as a directory Section dealing with procedure, and not intended, to take away the jurisdiction which had been conferred by the previous section. This view enables us to give effect to both these sections of the Code. If jurisdiction is given by one section of an Act, and it is contended that it has been taken away by another and subsequent section, it must be shown by the clearest language that this has been done.

2. But, so far as this Court is concerned, the matter is amply covered by authority. The case of Bykant Nath Shaha v. Rajendro Narain Rai (1885) I.L.R. 12 Calc. 333 seems to be a clear authority in favour of the view I have expressed. That has stood the test now of twenty-two years, and has not been Challenged. In the case of Kashy Nath Roy Chowdhry v. Surbanand Shaha (1885) I.L.R. 12 Calc. 317, in the same volume, I find this at page 321: 'It must therefore be taken to be settled law that when a property is sold in execution of a decree, it cannot be sold again at the instance of a decree-holder who had attached it before the attachment effected by the decree-holder under whose decree it is actually sold,' That case has been practically followed by several cases in this Court. I may perhaps refer to the oases of Duarka Nath Dass v. Banku Behari Bose (1891) I.L.R. 19 Calc. 651, which, though it does not deal with practically the same point, depended upon the same principle, and of Bam Narain Singh v. Mina Koery (1897) I.L.R. 25 Calc. 46 which certainly is in point. Then there are three or four, decisions in the Bombay High Court culminating in the decision in Abdul Karim v. Thakordas Tribhovan Das (1896) I.L.R. 22 Bom. 88 in which the authorities were reviewed, and the Court there expressed the same view that I am expressing to-day. So far as regards the Madras High Court, some of its earlier decisions were against this view, but in the case of Kunhayan Ithukutti (1998) I.L.R. 22 Mad. 295 the view taken by this Court has been followed. The only High Court in India which takes a different view is the Allahabad High Court. With great deference to the learned Judges who have decided three or four oases touching the same question, in that Court, I respectfully differ. The result therefore is that the decision of Mr. Justice Geidt is quite right, and the appeal must be dismissed with costs.

Holmwood, J.

3. I agree.


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