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Mohendro Coomar Dutt and ors. Vs. Heera Mohun Coondoo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal723
AppellantMohendro Coomar Dutt and ors.;ishaneswary Dasee
RespondentHeera Mohun Coondoo and ors.;gopal Das Dutt and ors.
Excerpt:
execution - sale--material irregularity--sale of a portion of a tenure--sale for arrears of rent--mortgage-decree---civil procedure code (act x of 1877), s. 311. - .....was wrong in selling a moiety of the tenure only in execution of the decrees for rent. now, these rent-decrees were obtained by persons who were sharers only and consequently, under the law at present in force, these decree-holders were not entitled to bring the tenure itself to sale under that special procedure by which a tenure is sold, in execution of a decree for arrears of its own rent, free from all incumbrances. all that these decree-holders, being sharers, were entitled to sell, was the right, title, and interest of the judgment-debtor. now, let us see what this right, title, and interest amounted to in the present case. there was admittedly a mortgage-decree obtained upon a mortgage-bond, by which one moiety of the tenure had been hypothecated; and this decree entitled the.....
Judgment:

Prinsep and Field, JJ.

1. No. 108:-This is an appeal against the order of the Subordinate Judge of the 24-Parganas confirming a sale, and it is contended that this sale ought not to have been cofirmed--first, because there was material irregularity in publishing it; and secondly, because substantial injury had been sustained by the appellants in consequence of such material irregularity. The first material irregularity alleged is, that the sale-proclamation was not published in the mofussil. We agree with the Subordinate Judge that the weight of evidence is in support of the sale-proclamation having been duly published in the mofussil.

2. The next contention is, that as the amount of annual rent payable upon the tenure was not stated in the notification of sale, this is a material irregularity. We certainly are of opinion that the amount of rent payable upon the tenure ought, in the careful transaction of business, to have been set out in the sale-proclamation ; but we are not prepared to say that the absence of this information, which is not, in so many words, prescribed by the law, was a material irregularity within the meaning of s. 311. If the annual rent had been stated to be more than it really was, this might have been material as tending to lessen the price at which purchasers would be willing to buy; but no information being given on the point, purchasers cannot be said to have been misinformed.

3. Then it is contended, that the decree-holders dissuaded purchasers from bidding at the sale. We think that the remarks [726] of the Subordinate Judge upon the evidence bearing upon this point are proper; and we see no reason to differ from the view which he has taken on this question. Under these circumstances, we are of opinion, that no material irregularity has been established; and this being so, this appeal must be dismissed with costs.

4. No. 109.-With reference to the question of material irregularity, the grounds taken in this appeal are the same as those taken in Appeal No. 108, and will be disposed of by the observations already made in the judgment in that case. There is, however, a further contention in this appeal,---viz., that the tenure ought to have been sold in its entirety, and that the Subordinate Judge was wrong in selling a moiety of the tenure only in execution of the decrees for rent. Now, these rent-decrees were obtained by persons who were sharers only and consequently, under the law at present in force, these decree-holders were not entitled to bring the tenure itself to sale under that special procedure by which a tenure is sold, in execution of a decree for arrears of its own rent, free from all incumbrances. All that these decree-holders, being sharers, were entitled to sell, was the right, title, and interest of the judgment-debtor. Now, let us see what this right, title, and interest amounted to in the present case. There was admittedly a mortgage-decree obtained upon a mortgage-bond, by which one moiety of the tenure had been hypothecated; and this decree entitled the mortgagee to enforce his lien. This being so, it is clear that all that remained to sell in satisfaction of the rent-decrees, and after the mortgage had been satisfied, was eight annas only. Taking another view of the question, it is clear that the holders of the decrees for rent had no lien upon the tenure. Whatever contention may be raised when a tenure is sold under the special procedure in order to satisfy the arrears of its own rent, that the landlord must be presumed to have a lien upon the tenure for such rent, we think no such contention can possibly be raised in a case in which the decree-holder, being a sharer only, is entitled to sell not the tenure itself, but the interests of the judgment-debtor only. This being so, we have here the case of one secured [727] creditor holding a decree, which entitles him to enforce his lien; and another decree-holder not secured and holding a simple money-decree. Under these circumstances, we think it impossible to say that the Subordinate Judge was wrong in allowing the mortgaged eight annas to be first sold in execution of the mortgage-decree, and then selling the remaining moiety in execution of the decrees for rent. This appeal, therefore, must also be dismissed with costs.


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