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Jhara Biswas and ors. Vs. Amritamoyi Dasi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.47
AppellantJhara Biswas and ors.
RespondentAmritamoyi Dasi and ors.
Excerpt:
civil procedure code (act v of 1908), section 11, order xxi, rule 90 - application to set aside sale for fraud, rejection of--suit, subsequent, by execution purchaser for possession--fraudulent sale, plea of--res judicata. - .....bar to a fresh impeachment of the sale as fraudulent. the defendants applied for setting aside the sale on the ground of fraud and were unsuccessful. they cannot litigate the same point again.3. both points fail and the appeal is dismissed with costs.in no. 568 of 1913.4. the first point is the same as in appeal from appellate decree no. 4116 of 1912 and is decided in the same way against the defendant.5. the second point is also the same but the facts are slightly different. the application for setting aside the sale as fraudulent was made by anukul alone and it is contended that anukul alone may be barred from raising the same plea but the other defendants are not, and their defence should have been investigated. taking it for granted that such an investigation could be made that would.....
Judgment:

1. The first point argued in this case is that the plaintiffs purchased nothing, as the defendants had no right to the ganti tenure which purported to be sold at the auction sale to their vendor. We see from the sale certificate that what was sold was the right, title and interest of the judgment-debtors in a tenure of 649 bighas bearing a jama of Rs. 560 under the ganti of Baikant Banerjee, etc. We think this was sufficient to pass whatever rights the judgment-debtors had in the property named. The Bnerjees had a ganti and the judgment-debtors a darganti consisting of the 649 bighas and other lands. There is no dispute about the identity of the lands. This being so, this point fails.

2. The next point is that the learned Judge was wrong in holding that the judgment in the case for setting aside the sale to the plaintiff's vendor is a bar to a fresh impeachment of the sale as fraudulent. The defendants applied for setting aside the sale on the ground of fraud and were unsuccessful. They cannot litigate the same point again.

3. Both points fail and the appeal is dismissed with costs.

In No. 568 of 1913.

4. The first point is the same as in Appeal from Appellate Decree No. 4116 of 1912 and is decided in the same way against the defendant.

5. The second point is also the same but the facts are slightly different. The application for setting aside the sale as fraudulent was made by Anukul alone and it is contended that Anukul alone may be barred from raising the same plea but the other defendants are not, and their defence should have been investigated. Taking it for granted that such an investigation could be made that would not help the defendants in this case. The auction sale by the Court is a good sale until it is set aside and it cannot be set aside by a defence. If the defendants other than Anukul have a subsisting cause of action on the ground of fraud they may have a remedy but they cannot oppose the plaintiff's present suit on that ground. This appeal also is dismissed with costs.


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