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Necharuddi Safui Vs. Ayod Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata
Decided On
Case NumberA.F.A.O. No. 64 of 1948
Judge
Reported inAIR1951Cal319
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rules 84 and 90
AppellantNecharuddi Safui
RespondentAyod Ali and anr.
Appellant AdvocateBhabesh Chandra Mitter, Adv.
Respondent AdvocateSyamdas Bhattacharyya, Adv.
DispositionAppeal dismissed
Cases ReferredSm. Annapurna Dasi v. Bazley Karim
Excerpt:
- .....the decision of the munsif, second court, diamond harbour, the facts are not disputed.2. the decree-holder appellant obtained a decree for contribution separately against the contesting respondent judgment-debtor l and also the judgment-debtor 2. the decree was not a joint decree. the judgment-debtor l had made a deposit in court but the deposit was short by rs. 4 and odd because of not depositing the costs decreed. the property of judgment-debtor l, as also that of judgment-debtor 2 who had made no deposit whatsoever and from whom the entire contribution money payable by him was due, were put up for sale and the property of judgment-debtor 1 was sold for rupees 40. rupees 4-8-3 were due from judgment-debtor l after the deposit made by him. the decree-holder was to have deposited.....
Judgment:

K.C. Chunder, J.

1. This is an appeal against an appellate decree of the Subordinate Judge, 1st Court Alipore, affirming the decision of the Munsif, second Court, Diamond Harbour, The facts are not disputed.

2. The decree-holder appellant obtained a decree for contribution separately against the contesting respondent judgment-debtor l and also the judgment-debtor 2. The decree was not a joint decree. The judgment-debtor l had made a deposit in Court but the deposit was short by Rs. 4 and odd because of not depositing the costs decreed. The property of judgment-debtor l, as also that of judgment-debtor 2 who had made no deposit whatsoever and from whom the entire contribution money payable by him was due, were put up for sale and the property of judgment-debtor 1 was sold for Rupees 40. Rupees 4-8-3 were due from judgment-debtor l after the deposit made by him. The decree-holder was to have deposited Rs. 8 and odd as 25 per cent, of the purchase money even after giving a set off for the amount of Rs. 4 and odd due. He did not make this deposit but deposited a smaller amount. Within 15 days he did not deposit the balance of the purchase money but deposited again a smaller amount. The result was that the purchase money was not deposited within the time allowed by law.

3. It has been held in a decision of this Court in the case of Sm. Annapurna Dasi v. Bazley Karim : AIR1941Cal85 that where a decree-holder purchaser does not pay the balance of the purchase money after deducting the decretal amount due, the sale to him is void even though it may be confirmed by the Court. This is exactly the position here.

4. In such a case Order 21, Rule 90 does not apply and the application was rightly considered by the Courts below to be under Section 47, Civil P. C. In the present case an argument had been put forward that there was wrong calculation on the part of the Court's officers but the wrong calculation in the present case was due to the decree-holder treating the several decrees for contribution as one joint decree for same. Therefore where the decree-holder's own mistake leads to a mistake on the part of the Court's officers, he cannot get advantage of such mistake made by the Court's officers. A party is not allowed to take advantage of his own wrong.

5. In the circumstances, the Courts below rightly held that the question of 30 days' limitation would not arise ; the application being under Section 47, Civil P. C., the judgment-debtor had a period of three years within which to have the sale set aside as a nullity and to have a re-sale of the property. The Court below, therefore, rightly held that the sale was void or a nullity and rightly set aside the sale. The only thing that the Court below should have done is to order a re-sale of the property if any part of the decretal amount was still due, and this the Court of execution will be at liberty to do if any subsequent application is filed for execution of the decree.

6. In the result, the order setting aside the sale is upheld and the appeal is dismissed with costs.


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