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Hafez Uzir Ali Vs. Nasimannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal865
AppellantHafez Uzir Ali
RespondentNasimannessa Bibi and ors.
Cases ReferredThakur Berhma v. Jiban Ram Marwari
Excerpt:
- .....district judge of 24 parganas, affirming an order by the munsif refusing the application of the decree-holder for setting aside a sale. the short history of the case is that the decree-holder brought a suit against the judgment-debtors in order to establish his niskar right to 7 1/2 bighas of land in which the judgment-debtors were alleged to have a tenancy right. that suit declaring the lakheraj right of the decree-holder was decreed as against the judgment-debtor. a certain sum of money was allowed to the decree-holder for costs. in execution of the decree for costs the decree-holder purported to sell the interest of the judgment-debtors in the property in question, that is to say the tenancy under the decree-holder's lakheraj interest. in the schedule annexed to the execution.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the decree-holder against the order of the Additional District Judge of 24 parganas, affirming an order by the Munsif refusing the application of the decree-holder for setting aside a sale. The short history of the case is that the decree-holder brought a suit against the judgment-debtors in order to establish his niskar right to 7 1/2 bighas of land in which the judgment-debtors were alleged to have a tenancy right. That suit declaring the lakheraj right of the decree-holder was decreed as against the judgment-debtor. A certain sum of money was allowed to the decree-holder for costs. In execution of the decree for costs the decree-holder purported to sell the interest of the judgment-debtors in the property in question, that is to say the tenancy under the decree-holder's lakheraj interest. In the schedule annexed to the execution petition the property was described as the darbust hakuk of the judgment-debtors under the petty niskar No. 488. The learned Munsif found that it was obvious that the words 'tenancy right of the judgment-debtors in petty niskar 488' were omitted and there was no doubt that the omission was accidental. The learned Munsif was of opinion, and there is no reason why that opinion should not be held to be absolutely right, that it was absurd to suppose that the decree-holder wanted to attach and put up to sale his own niskar property. The auction purchaser took the attitude in the trial Court that he had purchased the niskar interest of the judgment-debtors, and in the view that the judgment-debtors had no niskar interest the Munsif held that the decree-holder has suffered no loss and, therefore, his application should not be granted. It seems that if in his opinion the decree-holder was liable to suffer loss he would have interfered under the provisions of Section 151, Civil P.C. From his order dismissing the application the decree-holder appealed to the District Judge. On appeal the learned Judge was not satisfied with the reasons given for the alleged mistake having occurred. He held that the petition was verified by the decree-holder himself and he should be bound by it. The investigation into title did not come within the scope of the appeal before him. The learned Judge also held that the application which purported to have been made under Section 47, Civil P.C. was barred under Article 166, Lim. Act. In that view he dismissed the application.

2. With regard to the question of limitation it is sufficient for me to observe that an application under Section 47, Civil P.C. falls within Article 181, Lim. Act and not under Article 166, of the Act although in the result the applicant asked for setting aside the sale.

3. Prom the judgment of the learned Judge the decree-holder has preferred this appeal. A preliminary objection has been taken by the respondents that there is no second appeal. The appellant contends that the application falls within Section 47, Civil P.C., and so the order has the effect of a decree and there is a second appeal. It is contended on behalf of the respondents that the auction-purchaser in this case being a third party S, 47 has no application. This matter has been settled by the Privy Council in the case of Prasanna Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683, that where a question has arisen as to execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed the fact that the purchaser who is no party to the suit is interested in the result has never been held a bar to the application of the section. This position has been re-affirmed by their Lordships in the case of Ganapathy Mudaliar v. Krishnamachariar A.I.R. 1917 P.C. 121 where their Lordships referred to the, case of Prasanna Kumar Sanyal. Section 47, therefore applies even if a third party is the auction-purchaser where the application falls within the provisions of that.

4. It is next contended on behalf of the auction-purchaser respondent that the application is not one falling under Section 47 of the Code. I do not think that there is any substance in that contention. If the sale is set aside it would be a matter relating to the execution of the decree and the decree-holder would have to begin a fresh if he desires to execute the decree. If it is not set aside then the decree will have to be satisfied. It is in my opinion an application relating to the execution, discharge or satisfaction of the decree and a matter like this falls within the provisions of this section.

5. It has further been argued on behalf of the auction-purchaser respondent that if the decree-holder desires to set aside the sale on the ground of mistake he ought to bring a suit for it and not proceed by way of application. In my opinion where the question relates to the matter of execution of a decree and if it is alleged that by mistake the property which was sought to be sold was not sold but some other property belonging to the decree-holder himself, was put up for sale that matter should be decided in the suit itself and in the execution proceedings and not by a separate suit. As authority for this proposition the observation of their Lordships of the Judicial Committee in the case of Thakur Berhma v. Jiban Ram Mlarwari [1914] 41 I.A. 38 at p. 43 (of I.A. Ed.) may be cited. Their Lordships say:

If by mistake a wrong property was attached and an order made to sell it, the only course open to the decree-holder on the discovery of the mistake was to commence the proceeding over again:

see also Ramabhadra v. Kadiriyasami A.I.R. 1922 P.C. 252.

6. The whole question, therefore, is whether there was a mistake and secondly, whether the decree-holder is entitled to the relief sought for, that is, to set aside the sale on the ground of such mistake. The learned advocate for the auction-purchaser respondent argued that the District Judge on appeal seemed to find that there was no mistake, but the learned Judge did not say so. His opinion is stated in this way. 'I am not satisfied with the reasons for the alleged mistake having occurred.' What the learned Judge meant by that expression it is difficult to understand. What the decree-holder alleged was that he told the pleader what property was to be sold and that was taken down by his clerk, as it appear, in Bengali. The decree-holder certainly could not have intended to sell his own property as the learned Munsif pertinently observes. The evidence has been read over to us and there is no reason to suppose that the decree-holder intentionally wanted to put up to sale what might very well be construed his own lakheraj property. There is no doubt in my opinion that the description of the property sought to be sold was given by mistake in the application. It is not necessary to pursue the question whether the mistake was of the decree-holder or of the pleader's clerk who wrote out the petition for execution. It is necessary here to mention that apparently the decree-holder was unacquainted with the Bengali script as he signed his name in Urdu. But, however that may be, as I have already stated there cannot be any doubt whatsoever that the decree-holder did not want to put up his own property to sale.

7. That being so the next thing is to enquire whether the Court can give any relief. It cannot be disputed that mistake is a good ground for relief in cases of sale inter vivos, and I do not see any principle why if mistake is proved relief cannot be given in the case of a sale held through the intervention of the Court, There are instances where sales have been set aside on the ground of mistake. One of these cases I have already cited, the case of Thakur Berhma v. Jiban Ram Marwari [1914] 41 I.A. 38. In my opinion therefore the Court should give relief to the decree holder on the ground of mistake.

8. It has, however, been argued on behalf of the auction-purchaser that the learned Munsif was right in holding that no harm has been done to the decree-holder by reason of the alleged mistake. I put distinctly to the learned advocate of the auction-purchaser whether he would be satisfied with the declaration that he has purchased the right, title and interest of the judgment-debtors whatever it is. The learned advocate could not take upon himself to make any admission on behalf of his client. That shows that the auction purchaser means trouble, that is he wants to dispute the right of the decree-holder to the niskar title in the property as also his right to recover any rent on account of the tenancy which he really intended to sell. That being so the view of the learned Munsif that there has been no injury done to the decree-holder by reason of the mistake cannot be supported.

9. In my judgment the proper order in this case should be to set aside the sale and to allow the auction-purchaser the refund of the entire purchase money with interest from the date of the deposit upto this date at the rate of six per cent per annum. The appeal is therefore, decreed, the orders of both the Courts below set aside and the sale held in execution of the decree of the decree-holder is set aside. The decree-holder will be entitled if he so desires to proceed with the execution of the decree according to law. The interest decreed to the auction-purchaser will be payable by the decree-holder.

10. Having regard to the attitude of the auction-purchaser respondent throughout he must be made liable for the costs of these proceedings. If he had acted in a straightforward manner the proper order which I should have thought was to make the decree-holder liable for all costs. But in the present circumstances the auction-purchaser must be liable for costs, especially as one of the auction-purchasers is the clerk of the very pleader on account of whose mistake this unfortunate circumstance has taken place.

11. The appellant is entitled to his costs in all Courts. We assess the hearing-fee at three gold mohurs.

12. The application is allowed without costs and the parsons will be added as parties respondents to the appeal as prayed.

Bose, J.

13. I agree.


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