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Umesh Chandra Dass Vs. Shib NaraIn Mandal - Court Judgment

LegalCrystal Citation
SubjectLimitation;Service
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal1011
AppellantUmesh Chandra Dass
RespondentShib NaraIn Mandal
Excerpt:
decree, execution of - execution, steps in aid of--sale, confirmation of--civil procedure code (act xiv of 1882) sections, 311, 312--limitation. - .....we are of opinion that, inasmuch as no application was required for the purpose of having the sale confirmed, the application in question could not rightly be regarded as an application in aid of execution. section 312, code of civil procedure, says: 'if no such application' (that is to say, an application by the judgment-debtor or by the decree-holder to set aside that sale on the ground of irregularity) 'as is mentioned in the last preceding section be made, or if such application be made and the objection be disallowed, the court shall pass an order confirming the gale as regards the parties to the suit and the purchaser.' so the court is bound in the event of no application as contemplated by section 311 being made, to confirm the sale after the period of thirty days, as.....
Judgment:

Ghose and Geidt, JJ.

1. The question raised in this appeal is whether an application by a decree-holder, who has purchased a property in execution of his own decree, asking the Court to confirm the sale, is an application to take some steps in aid of execution of the decree, deferring to the application itself in this case, we find that it was really made by the decree-holder in his capacity as purchaser of the property in question. It was indeed made, not by the decree-holder, as such, but by the auction purchaser and, viewing it in this light it could hardly be said that it was an application in aid of execution of the decree. But apart from this consideration, we are of opinion that, inasmuch as no application was required for the purpose of having the sale confirmed, the application in question could not rightly be regarded as an application in aid of execution. Section 312, Code of Civil Procedure, says: 'If no such application' (that is to say, an application by the judgment-debtor or by the decree-holder to set aside that sale on the ground of irregularity) 'as is mentioned in the last preceding section be made, or if such application be made and the objection be disallowed, the Court shall pass an order confirming the gale as regards the parties to the suit and the purchaser.' So the Court is bound in the event of no application as contemplated by Section 311 being made, to confirm the sale after the period of thirty days, as provided by the Indian Limitation Act. And we fail to see how an application to the Court to confirm the sale could be regarded as an application in aid of execution of the decree. For these reasons we are of opinion that the Court below has taken a right view of the matter, and that this appeal should be dismissed with costs. We order accordingly.


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