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Ram NaraIn and anr. Vs. Dwarka Nath Khettry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal264
AppellantRam NaraIn and anr.
RespondentDwarka Nath Khettry
Cases ReferredIshan Chunder Sirkar v. Beni Madhub Sirkar
Excerpt:
sale in execution of decree - sale by sheriff--civil procedure code (act xiv of 1882), section 244, clause (c), sections 287, 311, 313--belchamber's rules and orders of high court, calcutta, 382-386--deficiency in area of land--application by purchaser to set aside sale or for compensation. - .....that authority is limited to the case where the judgment debtor has no saleable interest in the property sold.7. it was argued that the question raised by this application is a question arising on the execution of a decree, and that therefore the purchaser might come in under section 244, clause (c) of the code. but the answer is that the question in this application is not a question arising between the parties to the suit or their representatives. the word 'representatives' as used in the section has been held to extend to representatives in interest; but then the purchaser in this case has not purchased an interest of the judgment-debtor which is affected by the decree, nor can he be said to represent the interest of the judgment-debtor upon this application, because the object of.....
Judgment:

Sale, J.

1. This is an application by a purchaser of immoveable property at a Sheriff's sale for an order either that the sale may be set aside, or that he be allowed to retain out of the balance of purchase money a sum of Rs. 1,628 as compensation for an alleged deficiency in area of the land sold to him. The sale proclamation signed by the Sheriff, and issued by him under the provisions of Section 287 of the Civil Procedure Code, contained the statement that the property to be sold was 'No. 56, Lower Chitpore Road, being rent-free land measuring about 1 cottah 15 chittacks and 5 square feet with a three-storeyed house and premises erected thereon.'

2. Section 287 provides, amongst other things, that the sale proclamation shall specify as fairly and accurately as possible the property to be sold, any incumbrance to which the property is liable, the amount for the recovery of which the sale is ordered, and 'every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property'; and for the purpose of ascertaining the matters so to be specified the Court is empowered to summon and examine witnesses and to order the production of documents.

3. In this Court the necessary enquiry for ascertaining the particulars required to be stated in proclamations for Sheriff's sales is held by the Registrar, who acts under the powers given him by certain rules of the Court. See Rules 382-386, belchambers' Rules and Orders, page 188.

4. The purchaser in the present case alleges that the statement in the notification as to the area of the land sold is incorrect; that there is a deficiency in this respect of 4 chittacks and 10 square feet; and that he has been misled by this misstatement, and has thereby been induced to offer a higher price than he would otherwise have done.

5. The question is, whether the purchaser is entitled to adopt this summary procedure for the purpose of obtaining relief.

6. It is clear that the application is not sanctioned by any provision of the Civil Procedure Code; Bit) Mohan Thakur v. Rai Umanath Chowdhry (1892) I.L.R., 20 Cal., 8: L.R., 19 I.A., 154. The only section in the Code which authorises an application to the Court by the purchaser at an execution sale is Section 313, but that authority is limited to the case where the judgment debtor has no saleable interest in the property sold.

7. It was argued that the question raised by this application is a question arising on the execution of a decree, and that therefore the purchaser might come in under Section 244, Clause (c) of the Code. But the answer is that the question in this application is not a question arising between the parties to the suit or their representatives. The word 'representatives' as used in the section has been held to extend to representatives in interest; but then the purchaser in this case has not purchased an interest of the judgment-debtor which is affected by the decree, nor can he be said to represent the interest of the judgment-debtor upon this application, because the object of it being to reduce the amount of the purchase money, the interest of the applicant is adverse to the interests of the judgment-debtor. Ishan Chunder Sirkar v. Beni Madhub Sirkar (1896) I.L.R., 24 Cal., 62.

8. There are many instances where, at the instance of a purchaser at a Registrar's sale, the Court has allowed a reduction of the purchase-money where it appeared that the property sold was actually less in area than it was represented to be in the sale notification; but in one important respect sales by the Registrar stand on a different footing from Sheriff's sales in execution of decrees. Sales in execution of decrees are governed exclusively by the Civil Procedure Code; whereas sales by the Registrar, not being provided for by the Code, are regulated by rules framed by this Court; which were passed to supplement the procedure introduced by Act VIII of 1859. These rules provide that for the purpose of sales of immoveable properties directed by the Court, the Registrar is to prepare notifications of sale, abstracts of title, and conditions of sale. One of the usual conditions under which property is sold by the Registrar is that errors and misstatements as to the particulars or description of the property shall not, if capable of compensation, annul the sale; but that compensation shall be allowed therefor. No condition of this kind governed the sale in the present instance; nor could any such condition be made applicable to a Sheriff's sale in this Court without introducing a distinction between these sales and sales in execution by other Courts, which does not seem to be contemplated by the Civil Procedure Code. Formerly, all that was advertised for sale, and was in fact sold in execution of a decree, was the right, title and interest of the judgment-debtor, see Section 249 of Act VIII of 1859; and there was a wide difference between a sale of this character and a sale by the Registrar, where the title to the property and the incumbrances affecting it were fully disclosed in the abstract of title. But this distinction has in substance been swept away by the present Procedure Code and the practice which has grown up thereunder, with the result that an intending purchaser at a Sheriff's sale is now made fully acquainted with all the important particulars of the property he proposes to purchase. As, then, the position of a purchaser at an execution sale is the same in all material respects as that of a purchaser at a Registrar's sale, I can see no reason why, where a purchaser can show he has been misled by a misstatement in the sale notification, he should not have the benefit of the same summary remedy, whether it be he has purchased at a Sheriff's sale or a Registrar's sale. But it seems to me this is an amendment of the law which can only be effected by the Legislature.

9. The result is that the present application must be refused with costs, and I will certify for Counsel.


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