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Makhanchora Sarkar Vs. Nisind Gonai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.438
AppellantMakhanchora Sarkar
RespondentNisind Gonai and ors.
Cases ReferredMahomed Kala Mia v. Harperinck
Excerpt:
appeal - civil procedure code (act xiv of 1882), sections 241, 313, 588--inherent power of court to set aside sale--judgment-debtor having no saleable interest--remedy by regular suit. - .....the order passed in appeal is final. if, therefore, this had been an order made by the district judge in appeal under section 313 of the code the present appeal would have been barred. but even then, it would have been open to us to treat the memorandum of appeal as an application for revision and to afford relief to the appellant, under section 622 of the code of 1882. but the learned district judge apparently held that he had inherent power under section 244, civil procedure code, to set aside the sale and made the order under that section. if so an appeal clearly lies to this court.3. so far as the merits of the appeal are concerned, there can be no question that the order could not have been made under section 313. it is not disputed that that section applies only where the.....
Judgment:

1. This appeal is directed against an order passed by the District Judge of Murshidabad by which he has set aside an execution sale on an application by the auction-purchaser. It appears that the sale took place on the 19th June 1907, when the property was purchased by the present respondent. On the 7th August 1907 he made an application under Section 313. of the Code of 1882, in which he stated the circumstances under which he had made his purchase. A number of execution cases was pending in the Court of the first Munsif in some of which the judgment-debtors were Nand Kishore Lal and his infant brother Krishna Gopal Lal and in others the judgment-debtor was Nand Kishore Lal alone. The sale took place in the course of execution in a case in which Nand Kishore Lal alone was the judgment-debtor. The petitioner stated that he was not aware that in this particular case Nand Kishore Lal alone was the judgment-debtor and that he was under the impression that in all the execution cases both the brothers were judgment-debtors. He added that under this impression he had purchased the property as the property of both the brothers and had subsequently discovered the mistake. He prayed accordingly that the sale might be set aside and the purchase-money deposited by him returned. This application was opposed by the decree-holder. The. Court held on the 28th September 1907; that Section 313 had no application inasmuch as admittedly the judgment-debtor had some interest in the property sold, and in this view, refused to set aside the sale. The auction-purchaser then appealed to the District Judge. He agreed with the Court of first instance that Section 313 had no application, but went on to hold that the purchaser had been misled by the manner in which the proceedings had been conducted in Court and that, therefore, the Court had inherent power to set aside the sale. The legality of this order made by the District Judge is called in question in this appeal by the decree-holder. But before we deal with the merits of the case, a question arises as to the competency of this appeal.

2. Under Section 588 Clause 16 of the Code of 1882 an appeal lies against an order under Section 313, Civil Procedure Code, setting aside or refusing to set aside, a sale of immovable property, and under the last paragraph of that section, the order passed in appeal is final. If, therefore, this had been an order made by the District Judge in appeal under Section 313 of the Code the present appeal would have been barred. But even then, it would have been open to us to treat the memorandum of appeal as an application for revision and to afford relief to the appellant, under Section 622 of the Code of 1882. But the learned District Judge apparently held that he had inherent power under Section 244, Civil Procedure Code, to set aside the sale and made the order under that section. If so an appeal clearly lies to this Court.

3. So far as the merits of the appeal are concerned, there can be no question that the order could not have been made under Section 313. It is not disputed that that section applies only where the judgment-debtor had no saleable interest at all in the property sold. If the judgment-debtor has even a partial interest in that property, however small that interest may be, the sale cannot be set aside at the instance of the auction-purchaser under that section. In other words, the purchaser is not entitled to have the sale set aside under Section 313 on the ground that the judgment-debtor had a saleable interest in a very small portion of the property and had no saleable interest in the major portion of the property. This view is supported by the decisions of this Court in the cases of Ram, Coomar Bey v. Shushee Bhooshun Ghose 9 C. 626; Ram Narain v. Dwarlta Nath Khettery 27 C. 264 : 4 C.W.N. 13 and Sonaram Dass v. Mohiram Dass 28 C. 235. It is also in accord with the decision of the Judicial Committee in Birjmohun Thdkur v. Rai Uma Nath Chowdhry 20 C. 8 (P.C.) 19 I.A. 153 where it was ruled that a purchaser at a Court sale alleging that he has been misled by a misrepresentation as to the extent of the estate which he had believed to be put up for sale, cannot obtain a summary order under Section 3L3, Civil Procedure Code, for setting aside the sale. Their Lordships pointed out that Section 311 was limited strictly to the decree-holder or any person whose immovable property had been sold and, therefore, an auction-purchaser could not apply under that section to set aside the sale, and, although, doubtless Section 313 applied to the case of a purchaser, its scope was limited to the case of a person whose property was purported to be sold and who had no saleable interest therein. It was further remarked that under Section 312 if an application under Section 311 or 313 had not been made or had been made and disallowed, it was the duty of the Court to pass an order confirming the sale as regards the parties to the suit and the purchaser. It is manifest, therefore, that if the auction-purchaser is not entitled in the present case to make an application under Section 313 to set aside the sale, he cannot get the sale set aside by an application under Section 244. Reliance was, however, placed upon the case of Administrator-General of Bengal v. Annoda Prosad Dass 4 C.W.N. 504 to show that the Court had inherent power to set aside the sale under these' circumstances. But that case is clearly distinguishable, and, further it does not appear from the judgment that any objection was taken either by the decree-holder or by the judgment-debtor that the sale could not be set aside in the manner suggested. Reference was also made to the decision of the Bombay High Court in Ratnsey Arjoon, In Re: 7 Bom. L.R. 961, to show that the Court has inherent power to re-call an order which had been obtained from it by fraud or misrepresentation. That is a doctrine which is well-settled and was recognized by this Court in the cases of Bibi Tasliman v. Harihar Mahto 32 C. 253 and Jdit Chobey v. Radhika Prasad Upadhya 6 C.L.J. 662 : 3 M.L.T. 41 but it has obviously no application to the circumstances of the present case. There is no suggestion in the application of the respondent that any fraud was practised either by the judgment-debtor or the decree-holder; there is not even any suggestion that he was misled by the manner in which the proceedings were conducted in the Court below. Under these circumstances, it is clear that his application must be treated as one under Section 313, Civil Procedure Code, and admittedly under that section he is not entitled to any relief. We do not express any opinion as to the remedy of the respondent if he really has any grievance. It is possible that in view of the decision of the Judicial Committee in the case of Mahomed Kala Mia v. Harperinck 36 I.A. 32 : (1909) 1 Ind. Gas. 122 : 13 C.W.N. 249 : 6 A.L.J. 34 : 5 M.L.T. 120, 9 C.L.J. 165; 11 Bom. L.R. 227 : 36 C. 323 : 19 M.L.J. 122 he may have his remedy in a regular suit. That, however, is not a matter with which we can deal on the present occasion.

4. The result, therefore, is that this appeal must be allowed, the order of the District Judge set aside and the order of the Court of first instance restored. Under the circumstances, we make no order as to costs either in this Court or in the Courts below.


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