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Subodh Chandra Mallick Vs. Ajodhya Hatui and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal161
AppellantSubodh Chandra Mallick
RespondentAjodhya Hatui and ors.
Cases ReferredNanhelal v. Umrao Singh and Ganda Mal
Excerpt:
- .....in the face of an express provision of the statute-law, there is no scope for the exercise of its inherent jurisdiction under section 151, civil p.c., by a court, similarly there ought to be little or no scope for the parties to exercise their inherent right to settle their disputes if its effect is to-violate the express provisions of a statute which' creates or recognizes the claims or rights of bona fide purchasers not parties to the decree.6. in view of the express provisions of order 21, rule 92, in my opinion there is no justification for setting aside the sale contrary to the provisions of the rules. if the parties concerned wish to set aside the sale, let them do so under the provisions of the law, but in this case a third party wishes to set aside the sale on the ground that.....
Judgment:
ORDER

Jack, J.

1. This rule was issued calling upon the opposite party to show cause why the order, complained of in the petition, passed by the learned Munsif of Jhargram cancelling a sale and ordering a re-sale of certain property, should not be set aside on the ground that the learned Munsif had no jurisdiction to set aside the sale in exercise of his inherent power under Section 151, Civil P.C. The circumstances are as follows : On 29th November 1937, on the prayer of the judgment-debtor, waiving all objections to the issue of fresh sale proclamation, the case was adjourned to 15th December 1937, for sale. On 15th December 1937, it was similarly adjourned to 15th January 1938 for sale. On 15th January 1938, it was similarly adjourned to 15th February 1938 and on 15th February 1938, it was adjourned to 16th February 1938. On 16th February 1938, a petition was filed by a mortgagee asking permission to deposit provisionally to decretal dues. On this it was ordered:.Put up on 18th February 1938 with chalan. Inform decree-holder. Let the amount be deposited in Court as prayed for.

2. On 18th February 1938, this order was passed : 'Money not deposited. Put up for sale at once.' Then the sale was held and the Nazir reported that one Subodh Chandra Mullick purchased the property at Rs. 101 and deposited the earnest money. On 19th February 1938 the learned Munsif recorded this order:

The sale has already taken place and has been accepted. One, third person, Gopinda Prosad Jana appears with a petition praying for re-sale of the property after the cancellation of the sale already held. Heard pleaders. As the sale has not been confirmed, the Court has ample jurisdiction to set aside the sale or to refuse to confirm the sale : vide Ranhava Chariar v. Murugesa Mudali (1923) 10 A.I.R. Mad. 635. On the grounds as set forth in the petition, I think the sale is liable to be set aside. The petition is therefore allowed. Let the property be re-sold on the petitioners' paying the earnest money of Rs. 24-4-0 to the A. P. Put up for re-sale on 26th February 1938. Inform the parties through their respective pleaders.

3. Thereafter the property was resold and purchased by Govinda Prosad Jana at Rs. 400. The petitioner contends that under the provisions of Order 21, Rule 92 the Court was bound to make an order confirming the sale and had no jurisdiction to set aside the sale, there having been no application under Order 21, Rules 89, 90 and 91. This was not a case in which the Court was entitled to act under Section 151 and to cancel the sale. The petition on which the sale was cancelled sets forth that the petitioner had attended the Court on the 17th and the mortgagee having shown him a deposit chalan he Was under the impression that the decretal dues would be deposited and that there would be no sale on 18th February and was confirmed in this view by the fact that a lot lower in the list was sold on 17th February. In support of his jurisdiction to exercise his inherent powers in this case, the learned Munsif has referred to the case in Ranhava Chariar v. Murugesa Mudali (1923) 10 A.I.R. Mad. 635 where it was held that the Court has inherent powers to refuse to confirm an auction sale held under its order if it is satisfied that it has been misled either in giving leave to bid to the decree-holder or in fixing the reserve price and that Order 21, Rule 92 is no bar to the Court exercising its inherent power to refuse to confirm the sale, even though no party applied to cancel the sale. No doubt, the Court has inherent power where there is an abuse of the process of the Court, but the question is whether in the present case there has been any abuse of the process of the Court or whether the Court was misled by the conduct of the parties as in the Madras case. In that case the decree-holder who had applied for leave to bid had failed to disclose the fact that for the property Rs. 36,000 had already been bid in a previous suit and that the Court had refused in that suit to sell for anything less than Rs. 45,000. The learned Judge says that he would certainly have refused leave to bid and would not have fixed so low a a reserve price as Rs. 3000 if he had been placed in possession of the facts. The circumstances of that case are therefore totally different from the facts of the present case. In the present case there is no suggestion that the Court was in any way misled by the conduct of any of the parties. All that can be said in favour of setting aside the sale is that a third party owing to the conduct of another third party was misled and therefore did not attend the auction of the property on 18th February. The case was fixed for 18th February and the parties who wanted to bid would naturally suppose that the order would be passed on the 18th whether for sale or for acceptance of the deposit which was made. If the opposite party wished to obtain the property, he ought to have been present in Court on the 18th when the order for sale was passed on the failure of the mortgagee to make the deposit. Had the application for setting aside the sale been made by the judgment-debtor on the ground that there was no proper notice of the sale or that the public were misled into thinking that there would be no sale on the 18th there would have been some ground for the order setting aside the sale.

4. But, even in his application on 19th February, the opposite party did not state that the sale was held on an unauthorized date. It is not contested that the Court had no jurisdiction to set aside the sale under the provisions of Order 21, Rule 92 and the only contention made on behalf of the opposite party is that the Munsif is justified in passing the order under Section 151. The case reported in Ranhava Chariar v. Murugesa Mudali (1923) 10 A.I.R. Mad. 635 is an authority for holding that in a proper case such an order could be passed by virtue of the-Court's inherent power. With reference to this ease, it has been observed by Madha. van Nair J. in Sorimuthu Pillai v. Murhukrushna Pillai (1933) 20 A.I.R. Mad. 598:

In Ranhava Chariar v. Murugesa Mudali (1923) 10 A.I.R. Mad. 635 it was held that the Court has inherent power to refuse to confirm the sale on the ground that it was misled in fixing the reserve-price. This may also be treated as a case, having regard to the fact that the Court was misled into, passing an order for sale, where there had been no-valid sale.

5. Thus, the case on which the Munsif founds his jurisdiction is clearly distinguishable-from the present case. In Shankar v. Jawharlal Kinkhede A.J.C. lays down:

With due respect I venture to think that, just as in the face of an express provision of the Statute-law, there is no scope for the exercise of its inherent jurisdiction under Section 151, Civil P.C., by a Court, similarly there ought to be little or no scope for the parties to exercise their inherent right to settle their disputes if its effect is to-violate the express provisions of a statute which' creates or recognizes the claims or rights of bona fide purchasers not parties to the decree.

6. In view of the express provisions of Order 21, Rule 92, in my opinion there is no justification for setting aside the sale contrary to the provisions of the rules. If the parties concerned wish to set aside the sale, let them do so under the provisions of the law, but in this case a third party wishes to set aside the sale on the ground that owing to a misapprehension he failed to be present on the day of the sale and therefore was unable to bid. Had that; been due to some omission or wrong procedure on the part of the Court, the sale might have been set aside under the provisions of Section 151, but because of the action of a third party the opposite party was misled and was not present at the sale, on such a. ground there is certainly no jurisdiction to set aside the sale under Section 151. In support of this view I have been referred to the cases in Nanhelal v. Umrao Singh and Ganda Mal v. Taj Din (1933) 20 A.I.R. Lah. 99. It has also been urged on behalf of the petitioner that no notice was given to the auction-purchaser of the order setting aside the sale. No doubt the learned Munsif heard the pleaders on both sides, but there is no indication that the purchaser himself was present or represented when the order was made. On this ground also, the order was not justified. This rule is accordingly made absolute and the order cancelling the sale is set aside. In the circumstances of the case, I make no order as to costs.


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