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Sagore Mandal Vs. MofijuddIn Sardar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in51Ind.Cas.959
AppellantSagore Mandal
RespondentMofijuddIn Sardar
Cases ReferredAbdul Rahaman v. Sarafat Ali
Excerpt:
civil procedure code (act v of 1908), section 144 - restitution--auction-sale--decree-holder purchaser--decree set aside--judgment-debtor, whether entitled to restitution. - .....the appellant at the rate of rs. 125-4-0 a year. the appellant, who was the defendant in the rent suit, pleaded that the rent was rs. 73 12 0 a year. the decree was passed according to the rate admitted by the defendant. on appeal the suit was decreed at the rate of rs. 125-4-0 a year. the defendant preferred a second appeal to this court. this court set aside the decree of the court below and remanded the appeal for a fresh hearing on rehearing the rent suit was decreed at the rate of rs. 73-12-0 a year. before this final decree was passed and after the court below made a decree in the rent suit at the rate of rs. 125-4 0, the respondent (the decree-holder) executed his decree, put up the holding in arrears to sale and himself purchased the same. the present application is for.....
Judgment:

1. This appeal arises out of an application under Section 144, Civil Procedure Code. The respondent before us as plaintiff claimed rent against the appellant at the rate of Rs. 125-4-0 a year. The appellant, who was the defendant in the rent suit, pleaded that the rent was Rs. 73 12 0 a year. The decree was passed according to the rate admitted by the defendant. On appeal the suit was decreed at the rate of Rs. 125-4-0 a year. The defendant preferred a second appeal to this Court. This Court set aside the decree of the Court below and remanded the appeal for a fresh hearing On rehearing the rent suit was decreed at the rate of Rs. 73-12-0 a year. Before this final decree was passed and after the Court below made a decree in the rent suit at the rate of Rs. 125-4 0, the respondent (the decree-holder) executed his decree, put up the holding in arrears to sale and himself purchased the same. The present application is for restitution of the property on the ground that the decree under which the sale took place has been finally set aside.

2. The purchaser at the sale being the decree-holder himself, he must lose the benefit of the purchase on the reversal of the decree under which the sale took place see the cases of Zain-ul-Abdin v. Asghar Ali Khan 15 I.A. 12 ; 10 A. 166 ; 5 Sar. P.C.J. 129 ; 6 Ind. Dec. (N.S.) 112 (P.C.) and Chandan Singh v. Ramdeni Singh 31 C. 499. The latter case is cited by the lower Appellate Court in its judgment and the learned Subordinate Judge says as follows: 'I would have set side the sale and allowed the appellant possession following the aforesaid ruling, if the holding had not been in the meantime settled with a third party who is not a party on the record.' But the person deriving title from the purchaser at a sale stands in no better position than the person from whom he derives his title. In the case of Satis Chandra Ghose v. Rameswari Dasi 31 Ind. Cas. 834 ; 22 C.L.J. 409 ; 20 C.W.N. 665 it was observed that the Court as a matter of policy has a tender regard for honest purchasers at sales held in execution of its decrees though the decrees may be subsequently set aside, where those purchasers were not parties to the suit and the decree had not been passed without jurisdiction. But the same measure of protection is not extended to purchasers who are themselves the decree-holders; nor can purchasers from such decree-holders claim that the Court owes them any duty or to be within the policy which prompts the extension of protection to strangers, since they have bought from one whose title is liable to be defeated; and the decision of the Judicial Committee in the case of Zain-ul-Abdin v. Asghar Ali Khan 15 I.A. 12 ; 10 A. 166 ; 5 Sar. P.C.J. 129 ; 6 Ind. Dec. (N.S.) 112 (P.C.) was relied upon. The case of Satis Chandra Ghose v. Rameswari Dasi 31 Ind. Cas. 834 ; 22 C.L.J. 409 ; 20 C.W.N. 665 was followed in the case of Abdul Rahaman v. Sarafat Ali 31 Ind. Cas. 893 ; 20 C.W.N. 637 ; 22 C.L.J 412 and it was held that the assignee from the decree-holder, who has purchased property in execution of his own decree, is in no better position than his assignor. In the present case it is said that the property has been settled with a tenant. Such settlement cannot stand on a higher footing than the assignment of the property itself, as held in the case cited above.

3. It is contended, however, that the tenant is not a party to the suit and, therefore, no order should be made for restitution. But no objection on this ground was taken in the petition of objection filed by the respondent in the Court of first instance. Order I, Rule 13, lays down that all objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. In these circumstances, we think that the objection must be taken to be waived by the respondent.

4. The appellant is, therefore, entitled to restitution of the property. He is also entitled to claim mesne profits for the period he was out of possession as against the respondent. The orders of the Court below are set aside and the appellant will get possession of the land described in the schedule annexed to the petition restored to him as against the decree-holder respondent and will also be entitled to mesne profits as against the said respondent, the amount whereof will be ascertained by the Court of first instance; and for that purpose the case will be remanded to that Court. We make no order as to costs in any Court.


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