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Abdul Lotif Vs. Yousuff Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal255
AppellantAbdul Lotif
RespondentYousuff Ali and ors.
Excerpt:
right of suit - decree setting aside sale, effect of not executing, within six months--sale, validity of--right of auction-purchaser to bring suit for declaration of title and possession--revenue sale law (act xi of 1859), sections 34. - .....revenue, and their shares were sold up. the plaintiff, appellant before us, purchased under the revenue sale law of 1859. a suit was brought to set aside that sale by one only of the defaulters, and he obtained a decree; but he brought himself within the operation of section 34 of the revenue sale law of 1859, inasmuch as he failed to execute his decree within six months from the date thereof. he attempted to execute that decree in respect of costs, and execution was refused by reason of section 34. the plaintiff, who was the purchaser, now sues to recover possession of the recorded share that be bought, and he obtained a decree in the court of the munsif. in appeal the district judge has considered only one point, namely, the effect of the decree setting aside the sale, and whether.....
Judgment:

Prinsep and Banerjee, JJ.

1. The defendants, respondents in this case, are co-sharers in an estate, holding shares recorded separately, who defaulted in payment of Government revenue, and their shares were sold up. The plaintiff, appellant before us, purchased under the Revenue Sale Law of 1859. A suit was brought to set aside that sale by one only of the defaulters, and he obtained a decree; but he brought himself within the operation of Section 34 of the Revenue Sale Law of 1859, inasmuch as he failed to execute his decree within six months from the date thereof. He attempted to execute that decree in respect of costs, and execution was refused by reason of Section 34. The plaintiff, who was the purchaser, now sues to recover possession of the recorded share that be bought, and he obtained a decree in the Court of the Munsif. In appeal the District Judge has considered only one point, namely, the effect of the decree setting aside the sale, and whether the plaintiff, the sale having been set aside by that decree, had any right as purchaser to sue for possession. The District Judge has held that inasmuch as the sale was set aside, the plaintiff has no right to sue.

2. An objection was raised before him that the decree was not evidence in the present case, but it was disallowed, on the ground that it is admissible under Section 42* of the Evidence Act, since it relates to a matter of a public nature; and the Judge has found that it was of a public nature by reason of the publicity of the proceedings in the Collector's Court. We think that the Judge has misapprehended the meaning of Section 42 of the Evidence Act. A suit to set aside a sale for arrears of revenue concerns only the parties to that suit, and is no more of a public nature than any other suit, and the publicity of the sale cannot affect the nature of the suit or the decree passed. It cannot affect the public which of the parties was successful in that suit. The illustration to Section 42 shows the class of decrees that the Legislature had in contemplation.

3. The Judge has failed to appreciate the position of the parties in this case. Section 34 declares that if a sale made under the Revenue Sale Law of 1859 be annulled by a final decree of the Civil Court, the application for execution of such decree shall be made within six months after the date thereof, otherwise the party in whose favour such decree was passed shall lose all benefit therefrom. Now, although under this law defaulters have lost all benefit from this decree, the effect of the Judge's order declaring that the purchaser has no right, title or interest must be to give the property to the defaulters; in other words, to give them the benefit of the decree by holding that the sale to the plaintiff has been set aside. The only parties affected by that decree were the defaulters and the auction-purchaser; and if the defaulter is to get no benefit from the result of the suit brought by him and the decree which be obtained, it follows that the purchaser must be restored to his previous position. It seems to us, therefore, that the effect of Section 34 of the Revenue Sale Law, by reason of the neglect on the part of the defaulter to take advantage of the decree obtained by him annulling the sale, is to restore that sale so far as concerns the defaulter or those whose rights were sold at that revenue sale, and who have not thought it proper to join in the suit to have the sale set aside.

4. It is pointed out to us that, after hearing the argument on the other points raised in the appeal before him, the District Judge thought it necessary only to refer to this one point; and that, therefore, it should be assumed that he has found against the respondents on all other points. We cannot accept this view of the case. It seems to us clear that, although the District Judge may have heard the other points argued, he decided only this one point. It is impossible to say what his opinion on the other objections raised were. If it had been expressed, the parties might have had just ground to dispute them on second appeal.

5. The appeal must therefore be returned to the District Judge for trial for the other points raised before him.

6. The costs of this appeal will abide the result.

7. The judgment will also govern the other cases, namely, appeals from Appellate Decrees Nos. 56 to 60 of 1893.

* Judgment order or decree between third parties when irrelevant and when not.

[Section 42 : Judgments, orders, or decrees other than those mentioned in section forty-one are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders, or decrees are not conclusive proof of that which they state.]


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