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Bykant Nath Shaha Vs. Rajendro NaraIn Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal333
AppellantBykant Nath Shaha
RespondentRajendro NaraIn Rai and ors.
Cases ReferredObhoy Churn Coondoo v. Golam Ali I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, sections 285, 295--jurisdiction--sale by inferior court pending an unknown attachment by a superior court. - .....party, the same property was attached by the munsif of malda in the same district. at the sale held by the munsif of malda, the plaintiff, on the 29th september 1882, purchased the property, paid in the entire purchase money, and obtained an order confirming the sale on the 23rd november 1882. proceedings were then taken in the court of the subordinate judge of rajshaye to bring that property to sales the purchaser in the munsif's court objected; his objection was overruled: but at the sale subsequently held he again purchased. he now brings this suit to realize, from the decree-holder in the munsif's court as well as from the judgment-debtors, the amount paid, viz., rs. 800, as damages, contending that the munsif had no jurisdiction to hold that sale, and that his proceedings.....
Judgment:

Prinsep and Grant, JJ.

1. In execution of a decree obtained in the Court of the Subordinate Judge of Dinagepore, certain property belonging to defendants Nos. 2 and 3 was attached by the Subordinate Judge of Rajshaye. For certain reasons, however, there was delay in holding the sale. Meantime, in execution of another decree held by an entirely different party, the same property was attached by the Munsif of Malda in the same district. At the sale held by the Munsif of Malda, the plaintiff, on the 29th September 1882, purchased the property, paid in the entire purchase money, and obtained an order confirming the sale on the 23rd November 1882. Proceedings were then taken in the Court of the Subordinate Judge of Rajshaye to bring that property to sales The purchaser in the Munsif's Court objected; his objection was overruled: but at the sale subsequently held he again purchased. He now brings this suit to realize, from the decree-holder in the Munsif's Court as well as from the judgment-debtors, the amount paid, viz., Rs. 800, as damages, contending that the Munsif had no jurisdiction to hold that sale, and that his proceedings are therefore null and void.

2. The suit has been dismissed by both the lower Courts. It has been found that the decree-holder and the Munsif were ignorant of the previous attachment; that the Munsif was competent to hold the sale in execution of his own decree, and that he conferred a valid title on the purchaser. The appellant's pleader relies on Section 285 of the Civil Procedure Code, and some decisions of the High Courts of Allahabad and Madras, which declare that under the circumstances stated an inferior Court has no jurisdiction to hold an execution sale, and that such a sale is null and void.

3. In the case of Chunni Lal v. Debt Prasad I.L.R. 3 All. 356 the judgments delivered did not proceed on the same ground, and although the learned Judges discussed the meaning of Section 285, their opinions were not altogether in accord. Mr. Justice Spankie held that that section dealt with matters preceding a sale, and that no provisions appear to have been made for a case where a sale has been held, and requires to be confirmed, and where in one Court the sale has been cancelled and in the other it has been confirmed. Mr. Justice Oldfield, on the other hand, was of opinion that that section was intended to give the Courts specified therein exclusive power in all matters connected with sales.

4. In the matter of the petition of Badri Prasad v. Saran Lal I.L.R. 4 All. 359, the same question was again considered. The sale in that case was, held by the Munsif, although there was at that time an attachment of the same property by the Court of the Subordinate Judge. The attaching creditors in the Court of the Subordinate Judge made objection to the confirmation of the sale by the Munsif, and, on that objection being disallowed, they invoked the interference of the High Court under Section 622. The Court held that the Munsif was not competent to hold the sale, and stated: 'When several decrees of different Courts are out against a judgment-debtor, and his immoveable property has been attached in pursuance of them, the law contemplates, no matter whether such Courts be of the same or different grades, that one Court and one Court only shall have the power of deciding objections to the attachment; of determining claims made to the property; of ordering the sale thereof, and receiving the proceeds, and of providing for their distribution under Section 295.' It was accordingly held that that sale was a bad sale as being held in pursuance of the order of a Court that had no jurisdiction to direct it. The same matter was considered by the Madras High Court in the case of Muttukaruppan Chetti v. Mutturamalinga Chetti I.L.R. 7 Mad. 47. In that case the property was attached by the Munsif's Court and advertised for sale, but before the sale took place it was attached by the Subordinate Judge's Court and again sold. The question of title arose between these two purchasers, and it was held that the sale in the Subordinate Judge's Court alone conferred a valid title, the sale in the Munsif's Court being null and void. The appellant's case depends upon these judgments, and the view of the law thus expressed. This matter has come before this High Court in only one reported case, viz. Obhoy Churn Coondoo v. Golam Ali I.L.R. 7 Cal. 410. The facts of that case are similar to the case now before us. The Judges doubted whether Section 285 applied to immoveable property at all, but they stated that 'even assuming that the section does apply to immoveable property, there is nothing in it, so far as we can see which would absolutely destroy the validity of a sale already made, provided the proceeds of such sale were paid into the Court under whose decree the property was first attached.' They accordingly held that, in spite of the opposition made by the second purchaser under the first attachment of the superior Court, the first purchaser in the inferior Court was entitled to a decree for rent due from the property purchased. At the same time we observe that the learned Judges, having regard to certain special circumstances connected with the plaintiff's purchase, and, so far as we can learn from the report, not connected with the jurisdiction of the Court which held the sale, reserved liberty to the second purchaser to institute any suit with respect to the title to the land that he might be advised to bring against the plaintiff. The present Code, in directing under Section 295 that the assets realized in execution of a decree shall be divided rateably amongst all persons who, prior to the realization, have applied to the Court by which such assets are held for execution of decrees for money against the same judgment-debtor, as between the several judgment-creditors, has made it immaterial in execution of which of the decrees the sale of the attached property should be held. The object of all the, decree-holders is to bring the property to sale, so that they may all participate in the assets realized. The object of Section 285 no doubt is, as has been pointed out by the Allahabad High Court, to prevent confusion in the execution of decrees by providing for certain proceedings to be held by the superior Court where the Courts of execution are of different grades, or by the first attaching Court where both Courts have equal jurisdiction. Strictly speaking, therefore, no such proceeding should be taken except under the direction of one of these two Courts; but where an execution sale has been held by an inferior Court at the instance of the decree-holder (the Court itself, the decree-holder and the auction-purchaser being without any information of any objection to the exercise of a jurisdiction which that Court would ordinarily be competent to exercise), and that sale has been confirmed without any objection raised, we are not prepared to say that a title so obtained is not a valid title. The Subordinate Judge did not exercise a proper discretion in holding that the Munsif's sale was without jurisdiction and in insisting on a sale in his Court. He should rather have accepted that sale and have required the deposit in his Court of the assets realized, so that they might be rateably distributed amongst all the decree-holders. We are not prepared to hold, under the circumstances stated, that no valid title was conferred by the sale in the Munsif's Court which Was regularly held and duly confirmed. The course taken by the Subordinate Judge in re-selling the property was one almost certain to result in loss to the judgment-debtor, for, with notice of a previous sale and with the almost certainty of a litigation to settle a contested title, bidders were not likely to offer the full value of the property. That has been the result in the proceedings before us we have been unable to ascertain. The plaintiff has merely stated the sum paid at the first sale, and there is nothing, so far as we can learn, to show the amount realized at the second sale. The defendant-respondent's pleader, however, maintains that a similar sum was realized. That, however, for the purposes of the case before us is immaterial. We would only refer to the matter to point out to the Subordinate Judge the almost certain consequence of his mistaken action.

5. As the sale had already taken place and been confirmed, the Sub-Judge would have exercised a better discretion if he had refused to resell, and had sent for the assets for distribution in his Court.

6. We are unable to hold that the sale by the Munsif was null and void, as it was perfectly regular so far as the facts were known to the parties concerned and the Munsif himself. The existence of an attachment by the Subordinate Judge would not in itself invalidate these proceedings. We accordingly adopt the view taken in the case cited above and dismiss this appeal with costs.


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