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Menajuddi Biswas Vs. Toam Mandal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal881
AppellantMenajuddi Biswas
RespondentToam Mandal
Cases ReferredBibi Sharifan v. Mahomed Habibuddin
Excerpt:
in parties - execution sale--reversal of sale--execution purchase-transferee from the purchaser--civil procedure code (act xiv of 1882), section 311. - .....the present action lon the 27th june 1908. it is manifest that, as against the sub-lessee of the auction purchaser, the plaintiff has acquired no valid title in spite of the reversal of the sale. the auction purchaser was necessary party to the proceeding for reversal of the sale: bibi sharifan v. mahomed habibuddin (1911) 13 c.l.j. 535. at the time when the sale was set aside on the 9th may 1908, the interest of the auction purchaser had partially vested in the sub-lessee, who had acquired a valid title under the lease in his favour. the effect of the order of cancellation of the sale was to affect his interest behing his back. now it is an elementary principle that no person is to be deprived of his property in any judicial, proceeding, unless he has had an opportunity of being.....
Judgment:

Mookerjee and Carnduff, JJ.

1. The question of law which calls for decision in this appeal is, whether a transferee from the execution-purchaser is a necessary party to a proceeding for reversal of the execution sale, when such proceeding is commenced after the transfer has been effected.

2. The circumstances under which the question arises & are not disputed. The plaintiff appellant claims to be the tenant of a holding which was sold for arrears of rent by the landlord on the 16th July 1906. The landlord himself became the purchaser, and the sale was confirmed on the 27th August following. He sublet the land to the defendant on the 2nd May 1907. The plaintiff whose interest, if any, had been extinguished by the execution sale subsequently applied for reversal of the sale, and on the 9th May 1908 an order was made by which the sale was cancelled. The order was made by consent of the decree-holder and the judgment-debtor; but the Court added that grounds had been made out for reversal of the sale under Section 311 of the Code of 1882. The sub-lessee was not a party to these proceedings, and he naturally declined to vacate the land in favour of the plaintiff. Thereupon, the plaintiff commenced the present action Lon the 27th June 1908. It is manifest that, as against the sub-lessee of the auction purchaser, the plaintiff has acquired no valid title in spite of the reversal of the sale. The auction purchaser was necessary party to the proceeding for reversal of the sale: Bibi Sharifan v. Mahomed Habibuddin (1911) 13 C.L.J. 535. At the time when the sale was set aside on the 9th May 1908, the interest of the auction purchaser had partially vested in the sub-lessee, who had acquired a valid title under the lease in his favour. The effect of the order of cancellation of the sale was to affect his interest behing his back. Now it is an elementary principle that no person is to be deprived of his property in any judicial, proceeding, unless he has had an opportunity of being heard: In re Hammersmith Rent-charge (1849) 4 Exch. 87. Here C the defendant is sought to be affected without an opportunity afforded to him to defend his rights. It is thus plain that the plaintiff has not acquired any valid title as against the sub-lessee of the auction purchaser. The result, therefore, is that the decree made by the Subordinate Judge is affirmed, and this appeal dismissed with costs.


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