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Sarada Kripa Lala Vs. Horendra Kumar Das and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal271,68Ind.Cas.289
AppellantSarada Kripa Lala
RespondentHorendra Kumar Das and anr.
Cases ReferredDulhin Mothurs Koer v. Bansidhar Singh
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 89, application under - execution sale--private sale by judgment-debtor before confirmation--purchaser, application by, for setting aside sale on deposit, whether competent. - .....chandra das and that, in execution of the decree, the property of romesh chandra das was put up to sale by auction. the petitioner, the decree holder, purchased the property at the auction sale, for rs. 375. two days after the auction tale the judgment-debtor purported to sell the property by means of a kabala to a third party whose name was harendra lal das. hardendra lal das then applied under order xxi, rule 89, code of civil procedure, for the purpose of making the deposits which are therein specified. the learned munsif came to the conclusion that harendra lal das was not qualified to nuke the deposit under order xxi, rule 89, the learned munsif held that the private sale was void as against the decree-holder, who wag the auction-purchaser and referred to section 64 of the civil.....
Judgment:

Lancelot Sanderson, C.J.

1. This Rule arises out of an order of the Officiating Subordinate Judge of (sic)bittagong, by which be overruled the decision which bad been arrived at by the learned Munsif. It appears that the petitioner to this Court bad obtained a money-decree against one Romesh Chandra Das and that, in execution of the decree, the property of Romesh Chandra Das was put up to sale by auction. The petitioner, the decree holder, purchased the property at the auction sale, for Rs. 375. Two days after the auction tale the judgment-debtor purported to sell the property by means of a kabala to a third party whose name was Harendra Lal Das. Hardendra Lal Das then applied under Order XXI, Rule 89, Code of Civil Procedure, for the purpose of making the deposits which are therein specified. The learned Munsif came to the conclusion that Harendra Lal Das was not qualified to nuke the deposit under Order XXI, Rule 89, The learned Munsif held that the private sale was void as against the decree-holder, who wag the auction-purchaser and referred to Section 64 of the Civil Procedure Code, and he confirmed the tale to the auction purchaser. The result was that Harendra Lal Das appealed to the Subordinate Judge, who reversed the learned Munsif's order and remanded the case for taking the deposit and making the necessary orders thereon if not otherwise barred; This Rule was issued at the instance of the decree holder calling upon the Opposite party to show cause why the order of the learned Subordinate Judge should not be set aside.

2. The question which has been argued on this Rule is, whether Harendra Lal Das was a person entitled, within the meaning of Order XXI, Rule 89, to apply to have the sale set aside upon complying with the terms of that rule.

3. The learned Vakil who baa argued this case in support of the Rule has drawn our attention to several sates, the decisions in which go to show that there is a considerable difference of opinion as to the meaning of the terms of this Rule. As for instance, the case of Anantha Lakshmi Ammal v. Kunnan-chankaroth Sankaran Nair 38 Ind. Cas. 579 : (1913) M. W. N. 101 : 13 M. L. T. 128 : 24 M. L. J. 205. of the Madras High Court where the learned Judges took the view that the subsequent purchaser, if I may so call him, (Harendra Lal Das in this case) would be qualified to apply under Order XXI, Rule 89 : the case of Ishar Das v. Asaf Ali Man 13 Ind. Cas. 134 : 34 A. 180 : 9 A. L. J. 10. of the Allahabad High Court, where the learned Judges took a contrary view to that which was taken by the Madras High Court. Again, in the case of Dhanwanti Kuer v. Sheo Shankar Lal 51 Ind. Cas. 873 : 4 P. L. J. 340. a view contrary to that of the Madras High Court was taken by the learned Judges of the Patna High Court. The last case, to which I need refer to, is the case of Pandurang Laxman Uphade v. Govinda Bada Uphade 37 Ind. Cas. 211 : 40 B. 557 : 18 Bom. L. Rule 571. of the Bombay High Court. In some of those cases there was a discussion as to the effect of the auction sale, as to whether by reason of the auction sale the judgment debtor was divested of all his interest in the property sold. The High Court at Patna seems to have taken the view that he was: on the other hand, the learned Judges of the Bombay High Court seem to have taken the view that the judgment-debtor was not divested of all his interest in the property by reason of the auction sale, at all events, until it was confirmed. That point was raised during the argument on this Rule but I do not intend to express any opinion upon it, for, I do not think it necessary for the purpose of my judgment. I base my judgment upon what I consider to be the true interpretation of Order XXI, Rule 9. So far as it is applicable to the facts of thin case the rule runs as follows:' (1) Where immoveable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court'---then follow the particular sums to be deposited, which are specified in the section.

4. The view which was taken be the Bombay High Court in Pandurang Laxman Uphade v. Govinda Uphads (4), an appears from the head-note, was that a judgment-debtor, whose property had been sold at a Court sale in execution of decree against him, had a right to apply to have the sale sat aside as a person owning the property gold in execution of the decree within the meaning of Rule 89, Order XXI, of the Civil Procedure Code of 1908, in spite of the fast that he had transferred his interest in the property after the Court sale. That is not a decision expressly on the point now under consideration bat there are some observations in the judgment?, whish are applicable. Batchelor, J., at page 561 Pages of 40 B.---[Ed.] said: 'I am not able to adopt the view that it is open to the subsequent purchaser to apply under this rule, for, as it seems to me, he is excluded by the terms of the rule' and later, on the same page: 'For myself I an see no serious difficulty in holding that for the purpose of this rule the judgment-debtor in the position of the present applicant is still the owner of the property in the eye of the law, the auction sale being still unconfirmed;' and Shah, J. at page 563 Pages of 40 B.---[Ed.] said: 'It seems to me that a person owning the property or holding an interest therein by virtue of a tide acquired before the sale is within the rule, provided ha owns it or holds an interest therein at tae date of the sale by the Court.'

5. In this case I have only to deal with the application by Harendra Lal Das, who purported to purchase the property from the judgment-debtor 2 days after the execution sale by the Court, and before the sale was confirmed and to decide whether he was entitled to make the deposit under Order XXI, Rule 89, and to apply to have the sale set aside.

6. In my judgment, Harendra Lal Das, 'the subsequent purchaser' as he has bean sailed, is excluded by the express term of the rule, The interest, if any, which he lie Id in the property was not by virtue of a title acquired by him before the execution sale: his interest, if any, was by virtue of a title acquired after such sale and, consequently, in my judgment, he is produced by the very term of the rule from applying under Order XII, Rule 89. That is the point which I decide upon this application: and, in my judgment, it is sufficient to justify ma in holding that this Rule should be made absolute.

7. It was agreed by the two learned Vakils who argued this ease that there is no decision of this Court upon the point. Reference was made to the case of Dulhin Mothurs Koer v. Bansidhar Singh 10 Ind. Cas. 880 : 15 C. L. J. 88 : 16 C. W. N. 904. In that case the point, which is now before us, did not arise and was not dealt with by the learned Judges. For the above-mentioned reasons, in my judgment, this Rule should be made absolute. The result is, that the order of the learned Officiating Subordinate Judge is set aside and the order of the learned Munsif is restored. We make no order as to costs.

Chotzner, J.

8. I agree.


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