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Madhu Sudan Shaha Vs. Ram Pershad Chimanlal, Firm and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal827,153Ind.Cas.777
AppellantMadhu Sudan Shaha
RespondentRam Pershad Chimanlal, Firm and ors.
Cases ReferredGirish Chandra v. Sri Krishna De
Excerpt:
- .....any proceeding taken by a court executing one of such decrees. therefore in the present case the sale in execution of the decree in the second munsif's court is valid. that being the case the auction purchaser became the owner of the property before the sale in execution of opposite party 1. the auction purchaser is therefore not affected by the second sale as he was not a party in the suit and the only way in which opposite party 1 can attack him is by showing that his purchase was a collusive and fraudulent transaction. the. court below decided following the decision of mahadeo lal v. dinkar prasad, (1911) 9 ic 194, that the petitioner was not a representative of the judgment-debtor so as to enable him to apply under section 47 for a declaration that the property he had purchased was.....
Judgment:

Jack, J.

1. On 21st September 1932 the petitioner purchased 1 Bigha 4 Cottas of land on which were tin sheds and a godown in Mouza Panjagram. The purchase was made at an auction sale in execution of a rent decree against opposite party 2 and his cosharers. The sale was subsequently confirmed and the petitioner obtained possession through Court and has since been in possession of the property.

2. Opposite party 1 had also got a deceree against Opposite Party 2 and in execution of his decree had attached on 12th June 1931 a four annas share of the same property, and in execution of his decree this share of the property was sold on 18th June 1932 ; an application was made to set aside this sale and it was set aside on 29th July 1933. Thereafter proceedings were taken for re-sale and 23rd October 1933 was fixed for the sale. On that date the petitioner applied to the learned Subordinate Judge for exemption of the property from sale on the ground that the judgment-debtor had no saleable interest, the property having already been purchased by him on 21st September 1932. His petition was however rejected by the learned District Judge without going into the merits of the application on the ground that there was no provision in the Code of Civil Procedure empowering the Court to entertain such an application. It is against this order that the petitioner has come up to this Court in revision.

3. In coming to this decision the learned Judge was following the ruling, Mahadeo Lal v. Dinkar Prasad, (1911) 9 IC 194, in which it was held that neither Under Order 22, Rule 58 nor Under Section 47, Civil P. C, could the petitioner apply to prevent the sale of his property. Now Order 21, Rule 58 had obviously no application as it refers to objection to attachment. The question on which this case depends is whether the auction purchaser in execution of a money decree is a representative of the judgment-debtor in another case, the property having been attached in execution of the decree in that case previous to his decree.

4. Under Section 63, Civil P. C, the Court which shall determine any claim where properties are under attachment in execution of more decrees than one is the Court of the highest grade, or where the Courts are of the same grade the Court under whose decree the property was first attached. But by the proviso in Clause D nothing in the section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees. Therefore in the present case the sale in execution of the decree in the Second Munsif's Court is valid. That being the case the auction purchaser became the owner of the property before the sale in execution of Opposite Party 1. The auction purchaser is therefore not affected by the second sale as he was not a party in the suit and the only way in which Opposite Party 1 can attack him is by showing that his purchase was a collusive and fraudulent transaction. The. Court below decided following the decision of Mahadeo Lal v. Dinkar Prasad, (1911) 9 IC 194, that the petitioner was not a representative of the judgment-debtor so as to enable him to apply Under Section 47 for a declaration that the property he had purchased was not liable to sale in execution of the other decree. This decision appears to be correct for the authorities seem to show that though a wide meaning is to be attached to the term representative in Section 47, Civil P. C, the auction purchaser cannot be regarded as a representative of the judgment debtor unless his interest is affected by the decree. In the present case the interest of the petitioner judgment-debtor does not appear to be affected by the decree and therefore he is not entitled to maintain his application Under Section 47, Civil P. C. He is in possession of the property and it will be for the Opposite Party 1 to establish his claim to the property as against the petitioner by separate proceedings.

5. Reference has been made to the case of Srinivasa Chariar v. Appavoo Reddy, 192 Mad 889, where it appears to have been held in a similar case that a purchaser in an execution of a decree by an inferior Court can being to the notice of the superior Court the fact of his purchase as a representative of the judgment-debtor for stopping the sale in execution of a decree of the superior Court. The learned Judges dissented from the decision in the case of Mahadeo Lal v. Dinkar Prasad, (1911) 9 IC 194. In that case it was held that a purchaser was certainly a representative of the judgment debtor even though he was a Court auction purchaser and as such representative he was entitled Under Section 47, Civil P. C, to apply to the Subordinate Judge to stop the sale of the property on the ground that the title to it had passed to him. The learned Judges referred to the Full Bench Case of Veyindramutha Pillai v. Maya Nandan, 1920 Mad 324 in support of the decision. In that Full Bench casa it was held by Oldfield, J., that an auction purchaser is a representative of the judgment-debtor for the purpose of an enquiry relating to a subsequent execution of a distinct decree against the judgment-debtor. In the same case however it was held by the Officiating Chief Justice that

whether the auction purchaser. . . is to be regarded as the representative of the judgment-debtor or the decree-holder depends upon the nature of the questions raised and who the contesting party is.

6. The other learned Judge Seshagiri Ayyar, J., held that

if the points for decision in an application before the executing Court relate to the rival rights of the decree-holder and of the judgment-debtor and also relate to execution, discharge or satisfaction of the decree it should be dealt with in execution and not by separate suit.

7. Applying these principles to the present case it is clear that the present application is not maintainable Under Section 47, Civil P. C. It was suggested for the petitioner that this is a case in which the inherent powers of the Court should be exercised in favour of the petitioner inasmuch as, Under Order 21, Rule 64, the property was not liable to sale as it no longer belonged to the judgment-debtors. However, we do not think that the circumstances of the present case call for the exercise of our powers Under Section 151, Civil P. C. The rule must accordingly be discharged.

Khundkar, J.

8. I agree On behalf of the petitioner, argument was advanced that the sale on 21st September 1932 at which the petitioner purchased the property and which was subsequently confirmed effectively divested opposite party No. 2 of his entire interest in the property, so that it was no longer available Under Order 21, Rule 64, which requires not only that the property in question should be under attachment but also that it should be liable to sale. In the present case, it is argued that the property was not liable to sale inasmuch as it did not satisfy the language of Section 60 which clearly specifies as liable to sale only such property as belongs to the judgment debtor or over which the judgment-debtor has a disposing power. According to the petitioner, he is further fortified in his claim to relief by the provisions of Section 63(2) and reliance is placed on the case of Girish Chandra v. Sri Krishna De, 1924 Cal 168. This reasoning, as I apprehended it is that to permit the sale to opposite party 1 to be confirmed would have the effect of invalidating a proceeding already taken by a Court executing one of two decrees, viz., the earlier sale of the 21st September 1932 in which the petitioner himself purchased the property.

9. On these grounds it was contended that the learned Subordinate Judge had power Under Section 151 to stop the subsequent sale, and that his refusal to do so in the circumstances of this case amounted to a failure to exercise jurisdiction, which this Court acting Under Section 115 should correct by prohibiting confirmation of that sale. Reference was made to the case of Hukum Chand Boid v. Kamala Kanda Singh, (1906) 33 Cal 927 in support of the proposition that the learned Subordinate Judge had power Under Section 151 to stay his hand in the matter of the sale to opposite party 1, a step which in the circumstances of the case, was called for in the interests of justice. The observations contained in that judgment can however have no application to the special facts of this case, inasmuch as the concrete question which arises directly for determination here has been concluded by the decision in Mahadeo Lal v. Dinkar Prasad, (1911) 9 IC 194. Adopting the view taken in that case, I am satisfied that in the proceedings before him the learned Subordinate Judge had no jurisdiction to exempt the property from sale on the petitioner's application, and that accordingly his refusal to do so is not capable of revision.

10. In my judgment the case of Girish Chandra v. Sri Krishna De, 1924 Cal 168 is no authority to the contrary since in that case the question arose in a suit brought to establish the plaintiff's title and not, as in the present case, on the objection of an auction purchaser in an execution proceeding brought by another decree-holder. The validity of the sale in which the petitioner purchased the property has been challenged in the course of the argument addressed to us on behalf of opposite party 1. The attachment obtained by the latter was of an earlier date, and our attention has been invited to certain features of the execution proceedings in support of the suggestion that the sale to the petitioner was a collusive transaction. It is manifest therefore that at the present moment the real question at issue between the parties is whether the petitioner's title can prevail over that of opposite party 1. As the petitioner is now in possession, this question should in my judgment be left to be determined in such proceedings as may be suitably taken by the opposite party 1 to establish his rights against the petitioner.


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