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Abdul Samad and anr. Vs. Aslam Munshi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1944Cal381
AppellantAbdul Samad and anr.
RespondentAslam Munshi and ors.
Cases ReferredTasadduk Rasul Khan v. Ahmad Hussain
Excerpt:
- .....is held before the date notified in the sale proclamation than when it is held after. but if a sale held on a wrong day is a nullity, i cannot see any difference whether it is held too soon or too late. i can find no substance in this attempt to distinguish that decision. the respondents, on the other hand, are supported by the decision in hari sadhan roy v. shib gopal mitra ('21) 8 a.i.r. 1921 cal. 597, the decision of their lordships of the judicial committee in tasadduk rasul khan v. ahmad hussain ('93) 20 i. a. 176 (p.c.) is to the same effect and is therefore conclusive. as the matter was fully argued i will set out my own conclusion. there can be no doubt that the learned subordinate judge had jurisdiction to sell the property. the sale was actually held in the course of the.....
Judgment:

Henderson, J.

1. This appeal is by the judgment-debtors. The question involved is whether a certain sale held in execution of a decree was a nullity. The sale was held on 10th June 1936, in the course of the monthly sales. They were not finished on 8th June 1936, the date mentioned in the sale proclamation. No formal Order for adjournment was then made, the property, however, was put up to sale the next day. As the decree-holders' bid was not sufficient, a formal Order for an adjournment of the sale to the next day was made. The property was then purchased by the respondents on 10th June 1936. The learn, ed Subordinate Judge dealt with this matter as an irregularity under Order 21, Rule 90, Civil P.C. Indeed, the petition of objection was actually drafted that way. The learned District Judge, however, considered whether the sale was a nullity, but apparently did not appreciate that that was a matter under Section 47, Civil. P.C. If the appellants can establish that the sale was a nullity, they are entitled to ask for a declaration that their interest has not been affected thereby. Such an application comes within Article 181, Limitation Act. The right to make the present application accrued when the dispute about possession arose in 1940. Accordingly, it is not barred by limitation. Mr. Das Gupta asked me to refuse to give the appellants a declaration because of a certain incident which took place in the Court of the Subordinate Judge. He suggested that their refusal of an offer made by the respondents shows that they are mere benamdars of the other judgment-debtors. If the appellants had refused the offer of a declaration limited to their own share leaving the sale intact, it would be beyond dispute that they were the benamdars of the other judgment-debtors. It appears, however, that the respondents offered to allow the sale to be set aside with respect to the share of the appellants provided that they refunded to them a proportionate share of the purchase-money. But if the sale was a nullity there is no reason why the appellants should pay anything. Their refusal of this offer would not, therefore, dis-entitle them to a declaration.

2. It is often difficult to draw the line between an irregular sale and a nullity. There has, in fact been a conflict of judicial opinion on the point involved in the present case. The appellants are supported by the decision in Basharutulla v. Uma Churn Dutt ('92) 16 Cal. 794, and in Motahar Hossain v. Mohammad Yakub : AIR1925Cal201 , No reasons have been given in the judgment for the latter decision. Mr. Das Gupta sought to distinguish the former on the ground that in that case the sale was held too soon. No doubt, if it is a matter of irregularity, the judgment-debtors would be able to show injury more easily when the sale is held before the date notified in the sale proclamation than when it is held after. But if a sale held on a wrong day is a nullity, I cannot see any difference whether it is held too soon or too late. I can find no substance in this attempt to distinguish that decision. The respondents, on the other hand, are supported by the decision in Hari Sadhan Roy v. Shib Gopal Mitra ('21) 8 A.I.R. 1921 Cal. 597, The decision of their Lordships of the Judicial Committee in Tasadduk Rasul Khan v. Ahmad Hussain ('93) 20 I. A. 176 (P.C.) is to the same effect and is therefore conclusive. As the matter was fully argued I will set out my own conclusion. There can be no doubt that the learned Subordinate Judge had jurisdiction to sell the property. The sale was actually held in the course of the monthly sales. His failure to record a formal Order of adjournment from the 8th to the 9th was nothing more than, an irregularity in the exercise of his jurisdiction. It is far less serious than an omission to serve a notice under Order 21, 11. 22 which is itself nothing more than an irregularity in the execution proceedings. The appeal is, accordingly, dismissed. I mako no Order as to costs. The alternative application relates to the dismissal of the appellants' application under Order 21, Rule 90, Civil P.C. There is nothing which would justify my interference in revision. The application is accordingly rejected.


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