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Gahur Ali Karikar and ors. Vs. Sm. Asia Khatun and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1933Cal96
AppellantGahur Ali Karikar and ors.
RespondentSm. Asia Khatun and ors.
Excerpt:
- .....february 1931. in the course of his judgment he says:the properties were sold to compensate the decree-holder for judgment-debtor's disobeying the order of the court and thus being guilty of contempt of court. in such a case judgment-debtors 2 and 3 have no locus standi to apply to set aside the sale under order 21, r, 89, civil p.c. their only remedy was to obey the decree and pay all costs of executing the same within full one year of the date of attachment as provided by order 21, rule 32, cl (4). again order 21, rule 89, civil p.c., applies where immovable property has been sold in execution of a money or mortgage-decree. in the present case the properties in question were sold to compensate the decree-holder for judgment-debtors wilfully disobeying the order of the court passed.....
Judgment:

Costello, J.

1. These two Rules are the outcome and it is to be hoped to be the last stage in a protracted litigation between a man Gahur Ali Karikar on one side and his wife Asia Khatun, her mother Kokanu Bibi and her stepfather Misir Ali Karikar on the other. In the year 1927 Gahur Ali instituted a suit against his wife Asia Khatun, her mother Kokanu Bibi and her stepfather Misir Ali in which he claimed as against his wife restitution of conjugal rights and as against the other two defendants an injunction restraining them from obstructing the return of his wife to him. On 14th July 1927, a decree was made in that suit whereby it was ordered that Asia 'Khatun should return and render conjugal rights to her husband, the, plaintiff, and as regards the other two defendants that they be restrained from obstructing the return of the wife to the husband. Apparently that decree was not complied with by any of the defendants and accordingly the plaintiff made an application under Order 21, Rule 32, for the attachment of certain property belonging to Kokanu Bibi and Misir Ali on the ground that they had wilfully failed to obey the decree which had been made against them, The property was in fact attached on 4th September 1927. After the lapse of one year an application was made under Order 21, Rule 32, Sub-rule (3) for the sale of the attached property. That move on the part of the plaintiff seems to have been countered by his wife, defendant 1, in the suit by the institution of a fresh suit in which she sought a declaration that the marriage between her and the plaintiff had been dissolved by her lawfully giving a talak to her husband under some delegated power conferred upon her at the time the marriage took place.

2. In answer to the application which was made on 2nd October 1928, certain objections were raised by the defendants including the objection that the suit for a declaration that the marriage had been dissolved was pending and that in fact the marriage had been dissolved on some date in July 1928, that is to say, on a date prior to the application for the sale. In consequence of such objections, various proceedings took place which I need not specify. Finally, an order was made directing the sale and the sale of the attached property took place on 16th December 1930. It does appear that the Subordinate Judge, when he dealt with an appeal from that application, was in some doubt as to whether or not the sale ought to take place in the circumstances as at that time there had been no decision in the suit for a declaration of the dissolution of the marriage. However he came to the conclusion that there was no reason why the sale should not take place under the provisions of Order 21, Rule 32(3). A month or so later, that is to say, on 9th January 1931, there was an application on the part of the defendants Kokanu Bibi and Misir Ali, to have the sale set aside. That application purported to have been made under Order 21, Rule 89. The matter came before the Munsif, 2nd Court, Chikandi on 2nd February 1931. In the course of his judgment he says:

The properties were sold to compensate the decree-holder for judgment-debtor's disobeying the order of the Court and thus being guilty of contempt of Court. In such a case judgment-debtors 2 and 3 have no locus standi to apply to set aside the sale under Order 21, R, 89, Civil P.C. Their only remedy was to obey the decree and pay all costs of executing the same within full one year of the date of attachment as provided by Order 21, Rule 32, Cl (4). Again Order 21, Rule 89, Civil P.C., applies where immovable property has been sold in execution of a money or mortgage-decree. In the present case the properties in question were sold to compensate the decree-holder for judgment-debtors wilfully disobeying the order of the Court passed in a decree for restitution of conjugal rights.

3. He came to the conclusion that judgment-debtors Nos. 2 and 3 had no locus standi to have the sale set aside and therefore the petition was rejected. A few days later, that is to say, on 13th February 1931, the learned Munsif proceeded to assess the amount of compensation to be paid to the decree-holder under Order 21, Rule 32(3). He was of the opinion that the decree-holder was entitled to get compensation to the extent of Rs. 600. One of the two Rules, with which I am now concerned, has reference to that order. Against both the decisions of the learned Munsif there was an appeal to the Subordinate Judge of Faridpur and he dealt with both matters along with another matter, that is to say, the appeal against the order of the Court of first instance refusing to set aside the decree which in the meantime, that is to say, on 2nd July 1930, had been obtained by Asia Khatun in her suit against her husband. That decree had been made ex parte and had declared that the marriage between Gahur Ali and Asia Khatun had been dissolved as from 16th July 1928. The learned Subordinate Judge of Faridpur was evidently of opinion that the litigation between these parties was not only very unfortunate but that some of the orders which were made in the course of the proceedings were the outcome of the applications which were in effect abuses of the process of the Court. The Subordinate Judge came to the conclusion that the sale of the property attached in the way I have described ought to be set aside not because Order 21, Rule 89 was applicable to the circumstances of this case, but because the order directing the sale in the first instance ought, in fact, never to have been made on the ground that the decree of 2nd July 1930, made in the wife's suit, contained an injunction restraining her husband from putting into execution the decree obtained by him in July 1927. The learned Subordinate Judge also allowed the appeal as regards the Munsif's order for payment of Rs. 600 by way of compensation for the same reason. He definitely came to the conclusion that Order 21, Rule 89, has no application in the circumstances of this case and I am of opinion that the order was correct. There seems to be no doubt that the provisions of Order 21, Rule 32 are intended chiefly to provide something in the nature of a penalty for breach of an order of the Court, though Sub-rule (3) does provide that some portion of the price realized by the sale of the property may be allocated as compensation to the decree-holder in the suit.

4. It seems obvious that Rule 89 can have no application where a sale takes place under the provisions of Rule 32(3), because Rule 89 provides that a person, either owning immovable property which has been sold in execution of the decree or holding an interest therein by virtue of a title acquired before the sale, can apply to have the sale set aside on his depositing in Court, (a) for payment to the purchaser, a sum equal to five per cent of the purchase money and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered (less any amount to which may, since the date of such proclamation of sale, have been received by the decree-holder). That rule requires a two-fold payment on the part of the person seeking to set aside the sale: one payment to the purchaser or purchasers and another to the decree-holder. This presupposes that there is some specified sum of money which is due from a person or persons who was or were defendants in the suit, to the decree-holder. In the present case from the very nature of the suit itself, no sum of money was due to the decree-holder at the time when the sale under Rule 32 took place, and therefore proviso (b), Sub-clause (i), Rule 89, could not be complied, with by the person applying to have the sale set aside. In the present case some two months after the sale took place the Munsif, as I have already said, decided that Rs. 600 out of the purchase money realized by the sale of the attached property ought to be paid to the plaintiff as compensation. If it can properly be said that in effect the sale took place in order to provide for the recovery of the amount which might subsequently be ordered to be paid to the plaintiff, then on that footing it follows that the owners of the attached property, that is to say, Kokanu Bibi and Misir Ali in order to have the sale set aside would have to deposit in Court the sum of Rs. 600 for payment to Gahur Ali.

5. I have said that the decision of the Subordinate Judge was based upon the view that no proceedings in the nature of an execution proceeding with reference to the original decree ought to have taken place after the decree in the wife's suit, that is to say, after 2nd July 1930. But the fact remains that when the order for the sale of the property was made, objection was taken to the making of that order and there was an appeal against that order and the direction for sale was confirmed by the appellate Court and it was in accordance with the decision of the appellate Court that the sale in fact took place. In those circumstances it is clear that the sale did, in fact, take place under an order of Court which was subsisting at the time when the sale actually took place. The order, I have said, had been confirmed on appeal and no further steps were taken at that time with regard to it. It must, I think, further be taken that the sale validly took place under an order of the Court made by virtue of the provisions of Rule 32, Order 21. I have already indicated the reasons why I think the appellate Court below was right in holding that Order 21, Rule 89, does not apply. Moreover the proclamation of sale did not and could not contain as it should contain all the particulars required by Rule 66, Order 21. If Rule 89 does not apply there seems to be no other procedure appropriate for setting aside a sale of this character once it has been completed.

6. I therefore come to the conclusion, although I do so with great reluctance, that the learned Subordinate Judge was not justified in law in taking the course which he did in ordering the sale to be set aside and the order for the payment of the compensation to the plaintiff rescinded. One must bear in mind, as I have indicated, that the proceedings under Order 21, Rule 32, whatever the ultimate result may be, are clearly intended to be of a penal character designed to punish persons who have wilfully disobeyed the order of the Court. In that view of the matter and on the findings of the Courts below it appears that the defendants had disobeyed the orders contained in the original decree and therefore had rendered themselves liable to the consequences involved by the terms of Rule 32, Order 21. It follows therefore that these rules must be made absolute, the orders of the Subordinate Judge be set aside and those of the Munsif be restored. By consent it is further ordered that if Kokanu Bibi and Misir Ali pay to Gahur Ali within two months from today's date Rs. 600 and Rs. 30 to the purchasers of the attached property then the sale will be set aside and the sale will be void and the parties will be restored to the position quo ante. If the sum of Rs. 130 deposited in Court at the time of the application for setting aside the sale is still available, it should be credited to the defendants and the amount of the purchase money Rs. 600 deposited by the auction-purchaser should be refunded to the purchaser and all further proceedings between the parties in respect of the sale of the said property will terminate. Nothing in this order contained will affect the validity or enforceability of the decree said to have been obtained by Asia Khatun in respect of her dower.


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