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Surendra Kristo Ray Vs. Gooroo Prasad Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.432
AppellantSurendra Kristo Ray
RespondentGooroo Prasad Ghose
Cases ReferredKedar Nath Raut v. Kali Churn Ram
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89 - calcutta high court, original side, rules--sale held by registrar under rules, without attachment--order xxi, whether applicable. - .....workable together. although, therefore, it may be the fast that the provisions of order xxi of the code apply ordinarily to sales on mortgage-decrees after attachment under the provisions of the code, i hold that it does not apply to cases such as this without attachment where the sale has been held by the registrar under, and in conformity with, the rules of this court. the application, therefore, is dismissed with costs. i may, in conclusion, point out that the notice of motion is entirely out of order. it is alleged that the order sought was consented to but this is denied. the notice asks that the sale be set aside on such alleged consent. this, however, has not been proved. learned counsel has pressed for a decision on the law. the notice further asks that the sale be set aside on.....
Judgment:

Woodroffe, J.

1. This is an application under Order XXI, Rule 89, of the Civil Procedure Code in respect of an English mortgage executed in Calcutta upon which a decree for sale has been made by this Court;. There was no attachment before sale. For, according to the practice of this Court, no gush attachments are made in execution of mortgage-decrees. The question raised is whether Order XXT, Rule 89 applies to the case. Such an application is contrary to the practice is not provided for and is in respects at variance with the rules of this Court and is without authority for the case before Cbaudhuri, J., was (my learned brother tells me) by consent of all parties concerned and not after contest. Mention has been made of some case before Imam, J. but there was no judgment and what the circumstances of that case were and whether it was contested does not appear. The decision in Kedar Nath Raut v. Kali Churn Ram 25 C. 703 : 2 C.W.N. 353 : 13 Ind. Dec. (N.S.) 460 is against the application. Since then the new Code has been enacted. I must, therefore, determine whether that order has abrogated the practice of the High Court and the Rules which express it. The question has greater importance than a mere matter of regularity of practice, for a disturbance of that practice would involve an alteration in the rules which have only recently been approved by the Judges and is likely to interfere with the sales by this Court. The conditions and practice existing as regards such sales are different from those prevailing in the mofussil. Good prides are fetched at such sales owing to the procedure here adopted, the security of title and certainty in the procedure. There is a considerable risk that the values of property will be affected if it is understood that it is open to the mortgagor to apply to set aside the sale on payment under Rule 89.

2. These considerations are sufficient to make one cautious in reversing established practice. It may, however, have been the intention of the Legislature to do so and, therefore, we must examine the Code itself.

3. Rule 89 refers to a 'sale in execution of a decree.' When we turn to Rule 64, which deals with 'sales generally', we find that a Court may sell in execution any property attached by it and liable to sale. Properties are not attached under mortgage-decrees of this Court and in fact there has been no attachment in this case. If Rule 89 applies, it will be necessary to alter the practice in this respect. It has bean argued that Order XXXIV now incorporates the provisions of the Transfer of Property Act relating to mortgages and that this is a sale in execution of a decree and that Rule 89 of Order XXI, therefore, applies.

4. That every rule in that Order does not apply to mortgages is shown by Rule 20. This particular case, however, may be explained by the fact that Rules 18 and 19 refer to decrees for money. Rule 83(3) excepts property sold under mortgage-decrees. There is no such exception in Rule 89. Assuming, however, for the sake of argument, that that rule applies to the execution of mortgage decrees where there has been attachment, as in the mofussil, it has not been made out to my satisfaction that the section applies to the case of a sale such as this without attachment by the Registrar of this Court under its special rules, and that it was intended to abrogate the special practice of the Court in this respect. It is admitted that the case must strictly come within the terms of the section and therefore, though the application does not so state (and is, therefore, not in form) it is conceded that provisions (a) and (6) must be strictly followed. The same considerations apply to the preceding portion of the rule. For the other aide it is contended that if Rule 89 does apply, which is denied, then the purchaser is, under the Court's Rules, entitled to extra charges and expenses in addition to the 5 per cent. mentioned in Rule 89 of the Code. It is pointed out that there are purchaser's costs and commission of the Registrar and Accountant-General and the scale of mofussil expanses is different from those of this Court. A further question has been raised as to whether the deposit should accompany the application or not, and it has been pointed out that the Registrar does not accept deposits without a Court's order. I mention these contentions to show that, in these and other matters, the practice under the Rules of Court and the Code are not workable together. Although, therefore, it may be the fast that the provisions of Order XXI of the Code apply ordinarily to sales on mortgage-decrees after attachment under the provisions of the Code, I hold that it does not apply to cases such as this without attachment where the sale has been held by the Registrar under, and in conformity with, the Rules of this Court. The application, therefore, is dismissed with costs. I may, in conclusion, point out that the notice of motion is entirely out of order. It is alleged that the order sought was consented to but this is denied. The notice asks that the sale be set aside on such alleged consent. This, however, has not been proved. Learned Counsel has pressed for a decision on the law. The notice further asks that the sale be set aside on payment of 5 per cent only of the 25 per cent deposit and not of the whole of the purchase-money. Lastly, no offer is made in respect of payment to the decree-holder. I have, however, for the purpose of this judgment, assumed that the notice was an order and that the applicant was ready and in a position to comply with the terms of the rule. Even assuming this to be so, I hold that the application fails on the grounds above stated.


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