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Harasatoollah and ors. Vs. Brojonath Ghose - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal730
AppellantHarasatoollah and ors.
RespondentBrojonath Ghose
Excerpt:
immoveable property - sale in execution of decree--dispossession of third person--obstruction to purchaser--act viii of 1859, section 269--civil procedure code (act x of 1877), sections 318, 319, 334, 335--limitation act (xv of 1877), schedule ii, article 165. - .....section 335.2. section 318 provides for the giving of what is usually termed khas possession to an execution-purchaser, and the court is empowered to 'order delivery to he made by putting the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.' if resistance or obstruction is made by the judgment-debtor or any one on his behalf, the provisions of chapter xix of the code relating to resistance or obstruction to a decree-holder are applicable to section 334. if, on the other hand, the property sold was not in the khas possession of the judgment-debtor, but is in the occupancy of a tenant or other person entitled to occupy the same, possession by publication of.....
Judgment:

Markby, J.

1. The Subordinate Judge seems to have correctly explained the present state of the law. If the purchaser at a sale in execution of a decree be resisted or obstructed when being put in possession by the Court, as provided for by Section 318 or Section 319 of the Code of Civil Procedure of 1877,[1] the Court can now act only under Section 334 or Section 335.

2. Section 318 provides for the giving of what is usually termed khas possession to an execution-purchaser, and the Court is empowered to 'order delivery to he made by putting the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.' If resistance or obstruction is made by the judgment-debtor or any one on his behalf, the provisions of chapter xix of the Code relating to resistance or obstruction to a decree-holder are applicable to Section 334. If, on the other hand, the property sold was not in the khas possession of the judgment-debtor, but is in the occupancy of a tenant or other person entitled to occupy the same, possession by publication of his title is given to the execution-purchaser. And Section 334 provides for a summary enquiry on- 'resistance or obstruction caused by any person other than the judgment-debtor not in possession of the property sold, but claiming a right thereto as proprietor, mortgagee, lessee, or under any other title,' if such resistance or obstruction be made the subject of complaint by the purchaser.

3. No provision is, however, now made if the obstruction or resistance to the possession of an auction-purchaser is caused by a third party, a stranger, claiming to be in actual possession on a title altogether independent of the judgment-debtor.

4. Section 331 provides for such a case, but only when possession is being given to a decree-holder in execution of a decree; and this does not apply to an execution-purchaser.

5. Section 269 of the Code of 1859 provided for this case, and we do not understand why it has been omitted from the present Code of 1877, and this omission is the more remarkable because the law of limitation, passed almost simultaneously with the present Code, in Schedule II, Article 165,[2] seems to contemplate a summary enquiry by the Courts on the application by a person dispossessed of immoveable property and disputing the right of the purchaser at a sale in execution of a decree to be put in possession, since it provides a term within which suit or application by such a person for redress should he made.

6. In such a state of the law it seems obviously unfair for the Courts, which cannot now summarily determine the relative rights of the parties, to insist on putting an auction-purchaser into possession in spite of the resistance or obstruction of a third party having no connection with the judgment-debtor; and, therefore, it seems to us that, ordinarily, officers should be directed to abstain from any act of dispossession in such a case, leaving the execution-purchaser to his remedy by suit.

[1]

Section 318: When the property sold is in the occupancy of the judgment-debtor or of some

person on his behalf, or of some person claiming under a title

Delivery of immoveable created by the judgment-debtor subsequently to the attachment

property in occupancy of Judgment-debtor of such property, and a certificate in respect

judgment-debtor. thereof has been granted under Section 316, the Court shall, on

application by the purchaser, order delivery to be made by putting

the purchaser or any person whom he may appoint to receive delivery on his behalf in possession

of the property, and, if need be, by removing any person who refuses to vacate the same.

Section 319: When the property sold is in the occupancy of a tenant or other person

entitled to occupy the same, and a certificate in respect thereof

Delivery of immoveable has been granted under Section 316, the Court shall order delivery

property in the occupancy thereof to be made by affixing a copy of the certificate of sale in

of tenant. some conspicuous place on the property, and proclaiming to the

occupant by beat of drum or in such other mode as may be

customary, at some convenient place, that the interest of the judgment-debtor has been

transferred to the purchaser.

[2]

Schedule II, Article 165:

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Under the Code of Civil Thirty days. The date of dispossession.

Procedure, by a person dispos-

sessed of immoveable property,

and disputing he right of the

decree holder or purchaser at

a sale in execution of a decree

to be put into possession.

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