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Harendranath Banerjee Vs. Hari Charan Dutt - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.450
AppellantHarendranath Banerjee
RespondentHari Charan Dutt
Cases ReferredLachman Pershad Singh v. Ganga Pershad Singh
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 66 - jurisdiction of court to issue sale proclamation before objections are judicially disposed of--sale proclamation, issue of. - .....until the security bond is enquired into and final order is passed thereon and secondly, why the sale proclamation should not he cancelled and a fresh proclamation issued after the matters to be proclaimed are settled by the court. the first portion of the rule was obtained on a misstatement of facts. the record clearly shows that the nazir reported that the security bond should be rejected on the ground that the pleader who had identified the surety said that the security bond need not be furnished as it was not required, and having taken that statement the learned munsif rightly rejected the security bond on the ground that the pleader who identified the surety said that it need not be taken as it was not required. there is nothing in that point.2. the second point is a point that.....
Judgment:

1. This is a Rule calling on the opposite party to show cause why the execution proceedings mentioned in the petition should not be stayed until the security bond is enquired into and final order is passed thereon and secondly, why the sale proclamation should not he cancelled and a fresh proclamation issued after the matters to be proclaimed are settled by the Court. The first portion of the Rule was obtained on a misstatement of facts. The record clearly shows that the Nazir reported that the security bond should be rejected on the ground that the Pleader who had identified the surety said that the security bond need not be furnished as it was not required, and having taken that statement the learned Munsif rightly rejected the security bond on the ground that the Pleader who identified the surety said that it need not be taken as it was not required. There is nothing in that point.

2. The second point is a point that has been urged with some force and that is this, that the Court has no jurisdiction to issue a sale proclamation under the terms of Order XXI, Rule 66, Code of Civil Procedure, whenever any objection, however frivolous and however inaccurate, has been filed before the Judge and the Judge has not judicially disposed of that objection. I can see nothing in the words of the section to limit the power of the Judge. It may be that a property cannot be sold until the objections put forth are disposed of. I do not know whether it can or cannot be. But what we are asked to do in this case is to cancel the sale proclamation--whether we have the power to do that or not, I do not know--on the ground that there were certain objections which the learned Judge has fixed the time for hearing and the time had not arrived before the applicant moved this Court and owing to the action of the applicant had not been disposed of. I do not know any reason why the learned Judge being satisfied about this sale proclamation should not issue it because he has got an objection of some sort before him filed by the judgment-debtor. It may be that he is bound to dispose of that before the property is sold within thirty days, which is not an insufficient time to dispose of the objection. No authority has been shown to us saying that the Court cannot issue the sale proclamation in such a case. The case of Lachman Pershad Singh v. Ganga Pershad Singh 6 Ind. Cas. 180 : 15 C.W.N. 713, although the observations of the learned Judges in that case, having regard to the fact that they said that the appeal was in fructuous, must be taken as obiter, certainly does not establish the view set up that the Court is precluded in all cases from issuing the sale proclamation whenever the judgment-debtor files an objection, however frivolous and however unfounded the same may be. Whether the Court can sell or not without disposing of these objections is another matter. But as to the issue of the sale proclamation there seems to be no ground why it cannot be issued. The length of time that is taken by execution cases in this country is already very great and to give the judgment debtor under the terms of Order XXI, Rule 66, a new right and privilege to further delay the execution of the decree by providing that any objection which he may like to take as to the form of the sale proclamation must be adjudicated before the proclamation is issued is one which we ought not to encourage. There are no words in the rule suggesting that the proclamation cannot be issued until after the objections have been disposed of. I think that is the correct view of the Rule. The present Rule must, therefore, be discharged with costs, one gold mohur.

Newbould, J.

3. I agree.


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