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Tulsi Raut Vs. Sheikh Nabi Bux and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.193
AppellantTulsi Raut
RespondentSheikh Nabi Bux and ors.
Excerpt:
execution - auction sale set aside--auction-purchasers, several--some appealing against order setting aside sale, effect of, as regards auction-purchasers not appealing. - .....substance in it. there is a distinct finding of the lower appellate court to the effect that the auction-purchaser and the decree-holder have not identical interest and that the auction-purchaser was an innocent purchaser. he says: the reasons for holding that he is the real purchaser and the auction-purchaser a benamidar are insufficient and the auction-purchaser positively denies that this is so.'4. the 5th ground is that there are three auction-purchasers. two of them did not appeal to the district judge. it is, therefore, contended that the sale, so far as these two men are concerned, should be set aside. we do not think that this can be done, it is really one sale in execution of the decree and the property was knocked down to three individuals; it is impossible to make a division.....
Judgment:

1. This is an appeal against the order of the District Judge of Mozaffefpur, dated the 31st July 1914, setting aside an order of the Munsif, dated the 23rd April 1914.

2. An application was made to the Munsif under Order XXI, Rule 90, Civil Procedure Code, and Section 47 of the Code, on the allegation that the ex parte decree in the execution of which the land was sold was obtained fraudulently and that the land was sold fraudulently, which the decree-holder purchased himself in the name of his servant and relation Nabi Bux. The first Court held in favour of the applicant and set aside the sale on the grounds, first, that the decree on the strength of which the sale had taken place having been obtained fraudulently and having been set aside, all further proceedings after the decree were null and void; secondly, that there was fraud in the publication of the necessary notice of the sale which had caused inadequacy of price; and thirdly that the real purchaser was the decree-holder himself and that he purchased benami for himself in the name of Nabi Bux. The purchaser thereupon appealed to the District Judge, who has set aside the order of the Munsif. The order of the District Judge is now the subject of appeal.

3. On behalf of the appellant, many grounds were taken in the memorandum of appeal; but the learned Pleader appearing for him has confined himself only to two grounds mentioned therein, namely, to grounds Nos. 4 and 5. Ground No. 4 has no substance in it. There is a distinct finding of the lower Appellate Court to the effect that the auction-purchaser and the decree-holder have not identical interest and that the auction-purchaser was an innocent purchaser. He says: the reasons for holding that he is the real purchaser and the auction-purchaser a benamidar are insufficient and the auction-purchaser positively denies that this is so.'

4. The 5th ground is that there are three auction-purchasers. Two of them did not appeal to the District Judge. It is, therefore, contended that the sale, so far as these two men are concerned, should be set aside. We do not think that this can be done, It is really one sale in execution of the decree and the property was knocked down to three individuals; It is impossible to make a division in the sale with Regard to a portion of the property and to allow the sale to stand with regard to the other portion.

6. For these reasons we dismiss the appeal with costs, two gold mohurs.


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