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Santosh Bala Debi and ors. Vs. Ram Chandra Ghati and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in67Ind.Cas.286
AppellantSantosh Bala Debi and ors.
RespondentRam Chandra Ghati and ors.
Excerpt:
civil procedure code (act v of 1908), section 115, order xxi, rules 89 and 92 - application to set aside sale on deposit--notice to persons affected thereby--process fee, payment of, if obligatory on the applicant--revision--practice of high court--confirmation of auction sale--jurisdiction. - .....auction-purchaser, who is one of such persons, is entitled to notice of the application under that rule. rule 92, however, does not make it obligatory on the applicant to pay the process-fee or to serve notice according to the mode of service prescribed in the civil procedure code, in every case. it is clear from an examination of the record that the auction-purchaser appeared through a pleader on the 18th december 1920, the day on which the sale was held. he further appeared in court on the 4th january 1921, when be deposited the balance of the purchase-money. he must, therefore, be considered as a party on the record who had entered appearance in court and accordingly notice of the application could have been given to his pleader on the record. we have not been referred to any.....
Judgment:

1. The petitioners in this case, who are parda nashin ladies, invite us to vacate the order of the Munsif dated the 11th February 1921 confirming the sale of the petitioners' property and virtually refusing an application made by them under Order XXI, Rule 89, Civil Procedure Code.

2. It appears that the property was sold on the 18th December 1920 and purchased by the opposite party for Rs. 730 who deposited the earnest money on that day. On the 4th January 1921 the opposite party deposited the balance of the purchase money and the 22nd of January, was fixed for confirmation of the sale. On the 17th January the judgment-debtors, petitioners before us, deposited the claim and costs with compensation and prayed that the sale might be set aside. On the 22nd January, the date fixed for the confirmation of the sale, the Court passed the following order 'Judgment-debtors Nos. 1 to 5 have deposited the claim costs with compensation money within time. Issue notice on the auction-purchaser. Judgment-debtors Nos. 1 to 5 do file process-fee and duly filled in processes within 3 days. Put up on 9th February next,' On the 9th February it was found that processes and process fee had not been filed and deposited in Court. The case was accordingly adjourned to the 11th February for orders. On that date the Court passed the following order: 'Judgment debtors' Pleader Babu Ram Pada Mukherjee and clerk Babu Kashinath Chatterjee were asked to take steps for the service of notice on the auction-purchaser. Bat they did not take any steps. So the money deposited by the judgment-debtors cannot be accepted by the Court. Let the sale be, therefore, confirmed.'

3. It is contended by the petitioners that this order is wrong and the Court should not have confirmed the sale in the circumstances detailed above. Order XXI, Rule 92, Civil Procedure Code, no doubt, lays down that no order shall be made under Rule 89 unless notice of the application has been given to all persons affected thereby, and no doubt the auction-purchaser, who is one of such persons, is entitled to notice of the application under that rule. Rule 92, however, does not make it obligatory on the applicant to pay the process-fee or to serve notice according to the mode of service prescribed in the Civil Procedure Code, in every case. It is clear from an examination of the record that the auction-purchaser appeared through a Pleader on the 18th December 1920, the day on which the sale was held. He further appeared in Court on the 4th January 1921, when be deposited the balance of the purchase-money. He must, therefore, be considered as a party on the record who had entered appearance in Court and accordingly notice of the application could have been given to his Pleader on the record. We have not been referred to any authority which makes it incumbent on the judgment-debtor in such circumstances to pay any process-fee for a formal service of notice of the application on the auction-purchaser. We are satisfied that the order passed by the learned Munsif which was affirmed on appeal by the Subordinate Judge of Asansol is wrong and ought to be set aside.

4. It is argued by the opposite party that this Court is precluded by virtue of Section 115, Civil Procedure Code, from interfering with an order like the present one though passed wrongly. It is needless to say that in innumerable instances this Court has interfered with wrong exercise by the Courts below of powers vested in them under sections dealing with confirmation or setting aside of auction sales. If it is necessary to say anything on the question of jurisdiction we may add that the learned Munsif had no jurisdiction to confirm the sale when the judgment-debtors had complied with all the provisions of law and deposited the necessary amount within the time prescribed for that purpose.

5. The result is that this Rule is made absolute and the order of the Munsif of Asansol dated the 11th February 1921 is set aside and the case remanded to that officer for the disposal of the application under Order XXI, Rule 89, Civil Procedure Code, in the presence of all parties interested.

6. Costs of this Rule will abide the result. We assess the hearing fee at two gold mohurs.


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