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Doyamoyi Dasi Vs. Sarat Chunder Mojumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal175
AppellantDoyamoyi Dasi
RespondentSarat Chunder Mojumdar and ors.
Cases ReferredProsunno Kumar Sanyal v. Kali. Das Sanyal
Excerpt:
second appeal - order refusing to confirm a sale--subsisting decree--code of civil procedure (act xiv of 1882), sections 588, 316, 244. - .....then as to the merits. the judge in the court below proceeded upon the ground that there was a decree, a subsisting decree, in a suit for rent. it was admittedly an ex parte decree. under that ex parte decree the property was put up for sale, and sold, but one of the parties against whom the exparte decree had been made was successful in inducing the court to discharge that decree under section 108 of the code of civil procedure, the effect of which was, according to a recent decision of this court - mahomed hamidulla v. tohurennissa bibi ante p. 155 ---to discharge the decree, not only in favour of the particular applicant, but as against all the defendants to the suit in which the decree was made. therefore, when the ex parte decree was discharged, no decree in the suit remained......
Judgment:

Maclean, C.J.

1. I think that a second appeal lies in this case upon the short ground that the question to be decided is a question between the parties to the suit relating to the execution of the decree and possibly to the satisfaction of the decree within the meaning of Section 244 of the Code of Civil Procedure. I arrive at this conclusion upon the ground that a sale has been ordered, the sale has been effected, and effected for the purpose of satisfying the decree. If the sale be held to be bad, that is a question which affects the decree-holder, and affects the judgment-debtor, both of whom are parties to the suit. This is a question between the parties to the suit, and the person claiming here is the judgment-debtor; the decree-holder is made a party to the appeal and also the auction-purchaser. The case, therefore, is within Section 244 of the Code of Civil Procedure, and seems to me to come within the principle laid down by the Privy Council in the case of Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Cal. 683: L. R. 19 I. A. 166. It is conceded that if the case be within Section 244 a second appeal will lie.

2. Then as to the merits. The Judge in the Court below proceeded upon the ground that there was a decree, a subsisting decree, in a suit for rent. It was admittedly an ex parte decree. Under that ex parte decree the property was put up for sale, and sold, but one of the parties against whom the exparte decree had been made was successful in inducing the Court to discharge that decree under Section 108 of the Code of Civil Procedure, the effect of which was, according to a recent decision of this Court - Mahomed Hamidulla v. Tohurennissa Bibi Ante p. 155 ---to discharge the decree, not only in favour of the particular applicant, but as against all the defendants to the suit in which the decree was made. Therefore, when the ex parte decree was discharged, no decree in the suit remained. There was no decree existing in the suit, and if there were no decree, it is difficult, to my mind, to see how there could be any sale which could be confirmed when the decree under which it was made had ceased to exist; when the decree was discharged, the sale which purported to be made under that decree fell to the ground. The point arises upon an application to the Munsif to confirm the sale, which be refused to do, upon the ground that he should not confirm a sale under a decree which was not subsisting. The latter words of Section 316 of the Code of Civil Procedure tend to show that the sale cannot be confirmed, if the decree under which it was effected has ceased to exist. In my opinion, the Munsif was right an(sic) the Subordinate Judge was wrong, and this appeal must be allowed with(sic)CO

Banerjee, J.

1. I am of the same opinion. Upon the question whether or not a second appeal lies to this Court, I think it will be enough to say that this is not a case provided for by Section 588 of the Code of Civil Procedure, the order complained of not being one of those that that Section contemplates. The order here was an order refusing to confirm a sale, on the ground that the decree, in execution of which the sale took place, was not subsisting at the data when the confirmation of the sale was applied for. Then, I think, the question that was raised in this case may fairly be considered to be a question relating to the execution or satisfaction of the decree within the meaning of Section 244 of the Code of Civil Procedure. Having regard to the observations made by their Lordships of the Privy Council in the case of Prosunno Kumar Sanyal v. Kali. Das Sanyal (1892) I.L.R. 19 Cal. 683: L. R. 19 I. A. 166. I think that the order complained of comes under Section 244, and is therefore a decree as defined by Section 2 of the Code; and so a second appeal lies.

2. Then upon the merits, the appellant contends that the Munsif was right in refusing to confirm the sale, while for the respondent it is said that there is no express provision in the Code directing the Court not to confirm a sale when, at the date when such confirmation is applied for, the decree in execution of which the sale took place, ceases to be a subsisting decree. But the provisions of Section 316 of the Code go to show that the Court ought not to confirm a sale, when at the time such confirmation is asked for, the decree had ceased to be a subsisting decree. In the present case, the decree, which was an ex parte decree, had been set aside by an order under Section 108 of the Code. That being so, and there being no subsisting decree, the first Court was quite right in refusing to confirm the sale; and the Court of Appeal below was wrong in holding that the first Court was bound to confirm it.


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