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Fazar Banu Vs. Uzir Ali Mian, and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.284
AppellantFazar Banu
RespondentUzir Ali Mian, and ors.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri
Excerpt:
civil procedure code (act xiv of 1882), sections 244, 248 249 and 311 - sale, setting aside of--first application for execution barred,--notice issued under second application--no objection by judgment-debtor--effect of order. - .....appeal the learned district judge set aside that order and refused the application. the judgment-debtor appeals.3. for the appellant reliance is placed on a number of cases among which we may refer especially to hira lal bose v. dwija charan bose 10 c.w.n. 209 and umed ali v. abdul karim 8 c.l.j. 1.93. those decisions are certainly authority for holding that in the second execution proceedings which began on the 1st october 1905, the judgment-debtor would not have been precluded from pleading that the former application of september 1905 had been barred by time. but that will not help the appellant in this case. we have here the fact that in the second execution also notice was issued to the judgment-debtor, under section 248 of the former code. he did not appear and the court, on the.....
Judgment:

1. This appeal arises out of an application to set aside an execution sale on various grounds'. The only ground, with which we are concerned in this appeal, is that the execution, in the course of which the sale took place, was barred by time.

2. It appears from the judgment of the Munsiff that the application for execution was made on the 1st September 1905. That application appears to have been barred by time, but notice was issued under Section 248 of the former Code. The judgment-debtor apparently did not appear but the application was ultimately refused. Thereafter, another application was filed on the 31st October 1905. Another notice was issued under Section 248, and the heir of the deceased judgment-debtor was brought on the record. On the 9th December, the Munsiff recorded that the notices had been served but that the judgment-debtor had not appeared, and accordingly he directed that attachment and sale proclamation should issue. Subsequently, the sale was held and confirmed in March 1906, and the application to set aside that sale, out of which this appeal arises, was filed on the 11th May 1907. The Munsiff granted the application. On appeal the learned District Judge set aside that order and refused the application. The judgment-debtor appeals.

3. For the appellant reliance is placed on a number of cases among which we may refer especially to Hira Lal Bose v. Dwija Charan Bose 10 C.W.N. 209 and Umed Ali v. Abdul Karim 8 C.L.J. 1.93. Those decisions are certainly authority for holding that in the second execution proceedings which began on the 1st October 1905, the judgment-debtor would not have been precluded from pleading that the former application of September 1905 had been barred by time. But that will not help the appellant in this case. We have here the fact that in the second execution also notice was issued to the judgment-debtor, under Section 248 of the former Code. He did not appear and the Court, on the 9th December 1905, directed that attachment and sale proclamation should issue. That was an order under Section 249 of the then Code. As the decree-holder is also the auction-purchaser, it was also an order deciding a question arising between the parties to the suit and relating to the execution of a decree. It was, therefore, also an order under Section 244 and the judgment-debtor could have appealed against it. He did not appeal against it, and there is no doubt in our minds that that order was a final one between the parties. We may refer in this connection to the well-known case of Ram Kirpal v. Rup Kuari 6 A. 269; L.R. 11 I.A. 37. To use the words of the decision in the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51; 11 C.L.R. 113; L.R. 8 I.A. 123, 'that order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred, against it. It was acted upon and the property to be sold under it was attached.' This order, whether erroneous or not, was, in our opinion, a valid and binding order between the parties. The judgment-debtor did not see fit to attack it in appeal and he cannot now, when the sale has been held in continuation of the proceedings flowing from that order, plead that the order was wrong. And if that order remains, the sale cannot be successfully attacked.

4. In our opinion, therefore, the decision of the learned District Judge is right and the appeal must be dismissed with costs. We assess the hearing fee at three gold mohurs.


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