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Menajuddi Biswas Vs. Toam Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.176
AppellantMenajuddi Biswas
RespondentToam Mandal and ors.
Cases ReferredBibee Sharofan v. Muhammad Habibuddin
Excerpt:
party - necessary party--application to set aside sale--transferee from auction-purchaser, whether necessary party--reversal of sale--transferee of auction-purchaser riot made party--transferee not bound by reversal of sale. - .....the present action on the 27th june 1908. it is manifest that as against the sub-lessee of the auction-purchaser, the plaintiff has acquired no valid title in spite of the reversal of the sale. the auction-purchaser was a necessary party to the proceedings for reversal of the sale bibee sharofan v. muhammad habibuddin 10 ind. cas. 148 : 13 c.l.j. 535 : 15 c.w.n. 685. at the time when the sale was set aside on the 9th may 1908, the interest of the auction-purchaser had partially vested in the sublessee, who had acquired a valid title under the lease in his favour. the effect of the order of cancellation of the sale was to affect his interest behind his back. now, it is an elementary principle that no person is to be deprived of his property in any judicial proceeding unless he has had.....
Judgment:

1. The question of law which calls for decision in this appeal is, whether a transferee from the execution-purchaser is a necessary party to a proceeding for reversal of the execution sale, when such proceeding is commenced after the transfer has been effected.

2. The circumstances under which the question arises are not disputed. The plaintiff-appellant claims to be the tenant of a holding which was sold for arrears of rent by the landlord on the 16th July 1905. The landlord himself became the purchaser and the gale was confirmed on the 27th August following. He sub-let the land to the defendant' on the 2nd May 1907. The plaintiff, whose interest, if any, had been extinguished by the execution-sale, subsequently applied for reversal of the sale and on the 9th May 1908, an order was made by which the sale was cancelled. The order was made by consent of the decree-holder and the judgment-debtor; but the Court added that grounds had been made out for reversal of the sale under Section 311 of the Code of 1882. The sub-lessee was not a party to these proceedings and he naturally declined to vacate the land in favour of the plaintiff. Thereupon, the plaintiff commenced the present action on the 27th June 1908. It is manifest that as against the sub-lessee of the auction-purchaser, the plaintiff has acquired no valid title in spite of the reversal of the sale. The auction-purchaser was a necessary party to the proceedings for reversal of the sale Bibee Sharofan v. Muhammad Habibuddin 10 Ind. Cas. 148 : 13 C.L.J. 535 : 15 C.W.N. 685. At the time when the sale was set aside on the 9th May 1908, the interest of the auction-purchaser had partially vested in the sublessee, who had acquired a valid title under the lease in his favour. The effect of the order of cancellation of the sale was to affect his interest behind his back. Now, it is an elementary principle that no person is to be deprived of his property in any judicial proceeding unless he has had an opportunity of being heard Re Hammersmith Rent charge 4 Ex. 87 : 7 D. & L. 41 : 19 L.J. Ex. 66 : 14 Jur. 917. Here, the defendant is sought to be affected without an opportunity afforded to him to defend his rights. It is thus plain that the plaintiff has not acquired any valid title as against the sub-lessee of the auction-purchaser. The result, therefore, is that the decree made by the Subordinate Judge is affirmed and this appeal dismissed with costs.


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