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Maulvi Nazir Ahshan Vs. Dalip Mahton - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.725
AppellantMaulvi Nazir Ahshan
RespondentDalip Mahton
Cases ReferredBalvant Babaji v. Hira Chand
Excerpt:
certificate of sale - alteration--amendment as to share of property sold--power of court--civil procedure code (act v of 1908), sections 115, 152 and 153. - .....why the order of the sub-judge, second court of patna, dated the 7th september 1912, amending the sale certificate granted to dalip mahton on the 14th june 1912, should not be set aside and such further order passed as to this court might seem fit.2. the history of the proceedings which gave rise to this rule is as follows: there was a mortgage on which the mortgagee brought a suit, the mortgage being of a 3-anna 11-dam share of a certain property. the mortgagee got a decree against that property and became, under the decree, entitled to bring it to sale. he put in a petition for execution asking for the sale of a 3-anna 11-dam share of the property and a sale proclamation was accordingly issued to the effect, that 3-annas 11 dams would be sold. there was a dispute then between the.....
Judgment:

1. This is a Rule calling on the opposite party to show cause why the order of the Sub-Judge, second Court of Patna, dated the 7th September 1912, amending the sale certificate granted to Dalip Mahton on the 14th June 1912, should not be set aside and such further order passed as to this Court might seem fit.

2. The history of the proceedings which gave rise to this Rule is as follows: There was a mortgage on which the mortgagee brought a suit, the mortgage being of a 3-anna 11-dam share of a certain property. The mortgagee got a decree against that property and became, under the decree, entitled to bring it to sale. He put in a petition for execution asking for the sale of a 3-anna 11-dam share of the property and a sale proclamation was accordingly issued to the effect, that 3-annas 11 dams would be sold. There was a dispute then between the mortgagee and the mortgagor as to the values of some of the properties appearing on the sale proclamation and the result of the dispute was that a petition of compromise was put in in which it was stated that the mortgaged property consisting of 2 annas 11-dams was to be sold. On the footing of that petition of compromise, a sale proclamation was prepared proclaiming that the mortgaged property amounting to 2-annas 11-dams would be sold. The property was then put up to sale and was brought by an outsider, the person who is the opposite party to this Rule; and he obtained a sale certificate for 2-annas 11-dams. What he said he meant to purchase was 3 annas 11 dams as comprised in the mortgage and he accordingly made an application to the Sub-Judge and got the sale certificate amended so as to show a purchase of 3 annas 11 dams which, he said, he intended to purchase instead of 2 annas 11 darns which was to be found in the sale proclamation. Upon this, the present Rule was obtained calling on the purchaser to show cause why the order amending the sale certificate should not be set aside.

3. Two main objections there are, it seems to us, to the order which has been made by the lower Court. One is that the Court below had no jurisdiction to make the amendment. In our view, an alteration of this sort does not come either within Section 152 or within Section 153 of the Code of Civil Procedure. It was not the question what the Court intended to sell but the question was what the Court had actually sold in the proceedings and there can be no doubt what the Court did sell in this case. What the effect of the sale proclamation is has been very well stated in the case of Balvant Babaji v. Hira Chand 27 B. 334 at p. 393; 5 Bom. L.R. 217. 'The sale', said the learned Judges who decided that case, is a transaction, and consists, as all contracts do, of an offer and acceptance. The offer is made by the Court exercising, in the place of the judgment-debtor and on behalf of his creditor, the disposing power which the judgment-debtor had over the property. This offer is advertised or published by means of the proclamation of sale, which Section 287 requires to specify the property intended to be sold. An advertisement of this nature is an offer to such person as shall fulfil the required conditions as to the highest bid, deposit of 25 per cent. of the purchase money and punctual payment at the prescribed date and other prescribed conditions: and so far as concerns the identification of the property to be offered for sale, it is the only declaration which is authorised or required.' In the present case, it is argued that the expression 'mortgaged property,' to use the words of the learned Vakil, is the dominant feature of the proclamation and, therefore, it must be taken that what was actually sold was the mortgaged property. We cannot agree in this contention because the sale proclamation goes on to describe What is meant by the mortgaged property, namely, that it is 2 annas 11 dams, and the result is that any person, intending to buy and looking at the sale proclamation for the purpose of ascertaining what the Court was offering for sale, would be led to believe that it was offering 2 annas 11 dams, that is to say, what was stated in the proclamation and that is what was sold. There might possibly be a mistake. Whether there was a mistake or not, at any rate, it is perfectly clear, giving the sale proclamation the force which it is expressed to have in the judgment to which we have referred, that what was actually sold was 2 annas 11 dams and that the Sub-Judge had no power whatever to alter the certificate so as to make it appear that the 3 annas 11 dams was sold or to correct the mistake, if there was a mistake at all.

4. Then there is a further difficulty in the order which the Judge has made. It was important for the interests of the judgment-debtor that the best possible price should be got for the property which was put up for sale. The proclamation was published to get purchasers, and they would suppose that when they offered their bids, they were bidding for 2 annas 11 dams. It would be, it seems to us, an injustice to the judgment-debtor to alter what had been sold because, if it had been known that it was 3 annas 11 dams that the purchaser would get, he might have got other persons to bid and might have realised a higher price. In our opinion, the Court below had no jurisdiction to make the order which is the subject of this Rule and we think that the Rule should be made absolute with costs. We express no opinion on any other remedy to which the auction-purchaser may choose to have recourse for the purpose of setting right what he alleges to be a mistake. It is open to him to take any measure that he thinks proper. All that we can say is that the order which was made by the lower Court could not have been made and ought not to have been made, and must, therefore, be set aside. We assess the hearing fee at two gold mohurs.


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