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Beni Madhab Mandal Vs. Rai Charan Abi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal247,117Ind.Cas.558
AppellantBeni Madhab Mandal
RespondentRai Charan Abi and ors.
Cases ReferredMohan Singh v. Panchanan
Excerpt:
- .....estate. on 16th april 1919 the plaintiff himself purchased the property in dispute at a court sale in execution of the decree. no objection to the sale of this property was raised by the defendants or any of them under section 47 or order 21, civil p.c., or otherwise and in due course an order confirming the sale was passed under order 21, rule 92. thereupon the sale became absolute, and the property was deemed to have vested in the plaintiff as from the date of the sale. (s. 65, and order 21, rule 92). the plaintiff thereafter took actual possession of the property, but having been ousted by the defendants 1--4 he brought the present suit to recover possession of the property on establishment of his title thereto.2. at the trial the defendants contended that the property in suit.....
Judgment:

Page, J.

1. This case raises a question of some importance with respect to the rights of auction-purchasers at a Court sale in execution of a decree. The plaintiff obtained a money decree against, defendants 1 to 4, the sons of one Pitamber Ari to whom the plaintiff had lent money upon the security of a promissory note, to the extent to which the defendants were in possession of assets belonging to Pitambar's estate. On 16th April 1919 the plaintiff himself purchased the property in dispute at a Court sale in execution of the decree. No objection to the sale of this property was raised by the defendants or any of them under Section 47 or Order 21, Civil P.C., or otherwise and in due course an order confirming the sale was passed under Order 21, Rule 92. Thereupon the sale became absolute, and the property was deemed to have vested In the plaintiff as from the date of the sale. (S. 65, and Order 21, Rule 92). The plaintiff thereafter took actual possession of the property, but having been ousted by the defendants 1--4 he brought the present suit to recover possession of the property on establishment of his title thereto.

2. At the trial the defendants contended that the property in suit had been sold in execution of an earlier decree against their father Pitambar ; that on 15th December 1915, they had purchased it at a Court sale in execution of that decree ; and that the property was not liable to attachment or sale in execution of the decree which the plaintiff had obtained in 1919.

3. Both the lower Courts have held that the sale to the defendants was proved and that the sale to them was valid, and the plaintiff's suit has been dismissed. The plaintiff, however, in the lower Courts and also in the present appeal has contended that inasmuch as the defendants did not prefer any objection to the sale in the execution proceedings they were precluded from challenging the validity of the sale by way of defence to the present suit by the auction purchaser for possession. Now, although the defendants pleaded that they had no knowledge of the decree or of the execution proceedings which culminated in the sale of the disputed property to the plaintiff, no issue was raised in that behalf and no finding was obtained by the defendants in either Court that they were not aware of the decree and of the execution proceedings, or that their want of knowledge was due to the fraud of the plaintiff, and for the purposes of this appeal it must be taken that at all material times the defendants were fully cognizant of the steps that the plaintiff was taking to enforce his claim against the property in suit. In support of his contention the appellant referred to a number of authorities to the effect that all questions relating to the execution, discharge or satisfaction of a decree between the parties to the suit or their representatives must be raised and decided in the execution proceedings, and that:

the penalty imposed on a negligent judgment-debtor is set out in Rule 92, and it is that the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. This amounts to a judicial determination that none of the objections exists on which the validity of the sale could have been questioned.

(per Walmsly and Suhrawardy, JJ. in Jagneswar Sikhdar v. Kailas Mandal : AIR1925Cal81 .

4. See also Durga Charan Mandal v. Kali Prasanna Sarkar [1899] 26 Cal. 727, Sheikh Murullah v. Sheikh Burullah [1905] 9 C.W.N. 972, Dwarka Nath Pal v. Tarini Sankar Roy [1907] 34 Cal. 199, Basiram Malo v. Katyani Debi [1911] 38 Cal. 448, Mohon Singh Choudhuri v. Panchanan Sadhukhan : AIR1927Cal106 Gokul Singh v. Kisan Singh [1910] 34 Bom. 546 Umed v. Jas Ram [1907] 29 All. 612. On the other hand the respondents relied upon a line of authorities in which the Court, strictly following the language of Section 47, Civil P.C. (5 of 1908) pointed out that the legislature had not prohibited the determination of such questions in but by a separate suit, and therefore, held that all objections to the sale that might have been but were not raised in the execution proceedings by the judgment-debtor might be pleaded by way of defence in a suit by the purchaser for possession of the property that had been sold in execution of the decree. Bhiram Ali v. Gopi Kanth Shaha [1897] 24 Cal. 355, Nil Kamal Mukherji v. Jahnavi [1899] 26 Cal. 946, Durga Charan v. Karmat Khan [1903] 7 C.W.N. 607 Chandramani Saha v. Halijennessa Bibi [1909] 9 C.L.J. 464 Suradhani Dutta v. Sitoo Sheikh A.I.R. 1922 Cal. 311 Venkataramachariar v. M. Sundaram Iyar [1909] 19 M.L.J. 1 Chuia Dandasi v. Pedda Tatiah A.I.R. 1921 Mad. 272. Now, if either rule is applied in its full rigour injustice may result. On the one hand it would be unjust that a judgment debtor, who by reason of the fraud of the decree-holder or judgment-creditor had remained unaware of the execution proceedings until after the auction purchaser had brought his suit for possession, should be debarred from raising objections to the sale as a defence to the claim for possession. On the other hand, it would be unjust to an auction-purchaser at an execution sale, who bona fide and in due course of law had obtained an order confirming the sale, that the right to objection to the validity of the sale should depend upon whether the judgment-debtor was the plaintiff or the defendant in a separate suit, or that the validity of the absolute title that had vested in him under Section 65 and Order 21, Rule 92 of the Code should remain open to objection by the judgment-debtor until the auction purchaser had obtained possession of the property.

5. Now, are the divergent rulings upon this subject to which I have referred incapable of reconciliation? I think not. And I am the more disposed to take this view because I find that Mitra, Walmsley and Suhrawardy JJ. have each of them expressed an opinion in favour of the one view as well as of the other. In my opinion when the matter is proved more deeply the true rule will be found to lie between the two extremes.

6. There can be no donbt as to the object that the legislature had in view when enacting the provisions of the Code relating to execution. It was to provide machinery whereby an auction-purchaser at a sale in execution of a decree should be able to obtain an absolute and conclusive title to the property sold in a simple and expeditious manner.

It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244.

(now Section 47) per Lord Macnaghten in Prosonna Kumar Sanyal v. Kalidas [1892] 19 Cal. 683 (at p. 687).

If there was really a ground of complaint, and if the judgment-debtor would have been injured by these proceedings in attaching and selling the whole of the property while the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached and about to be sold, which he knew well but of which the execution creditor or decree-holder might be perfectly ignorant--that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed.

(Per Sir Richard Couch in T.R. Arunachellam v. V.R. Arunachellam Chetti [1889] 12 Mad. 19 at p. 174 of 15 I. A).

7. See also Basti Ram v. Fattu [1886] 8 All. 146, Behari Singh v. Mukat Singh [1906] 28 All. 273, Gokul Singh v. Kisan Singh [1910] 34 Bom. 546, Dwarka Nath Pal v. Tarini [1907] 34 Cal. 199, Mohan Singh v. Panchanan : AIR1927Cal106 . In my opinion, the true rule to be collected from the authorities is this, that all questions between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree must be raised and determined in the execution proceedings as provided by the Code and not otherwise, and that the parties or their representatives are precluded from raising or canvassing any such question in any separate suit or proceeding, except by way of defence in a separate suit when the defendant has been kept out of knowledge of the execution proceedings until after the suit had been brought by the fraud of the decree-holder or judgment-creditor.

8. In the circumstances obtaining in the present suit, in my opinion, the respondents were precluded from raising the defence that the property in suit was not liable to be sold in execution of the plaintiffs' decree, and as against defendants 1--4 the appeal succeeds, and the decrees of the lower Courts will be set aside.

9. The plaintiff is entitled to a declaration of his title and to a decree for possession as prayed as against defendants 1 to 4. As against defendant 5 the decree of the lower Court stands and the suit is dismissed. The respondents, defendants 1 to 4, will pay the appellant's costs in all the Courts.

Mallik, J.

10. I agree.


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