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Munshi Fuzlur Rahaman, Mukhtear Vs. Sadar Ali and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in107Ind.Cas.67
AppellantMunshi Fuzlur Rahaman, Mukhtear
RespondentSadar Ali and ors.
Cases ReferredMakar Ali v. Sarfaddin
Excerpt:
civil procedure code (act v of 1908), sections 65, 60 - benami purchase in execution sale,--sale held before passing of new code but confirmed after new code--suit by real owner against transferee of benamidar, whether maintainable--difference between old and new codes. - .....the old code applies. the chief difference between the two sections is that whereas under the old code a suit would lie against the heirs or assignees of a benamdar though not against the benamdar, under section 66 of the new code no suit would lie against anyone claiming a title under the certificated purchaser. the learned vakil for trie appellant has referred to two decisions of this court, being the case of promotha nath pal v. sourav dasi 58 ind. cas. 327 : 47 c. 1108 : 24 c.w.n. 1101 : 31 c.l.j. 463 and the case of makar ali v. sarfaddin 70 ind. cas. 606p : 50 c. 115 : 27 c.w.n. 183 : 36 c.l.j. 132 : a.i.r. 1923 cal. 85 to support his argument. but in 'both those cases the sale was confirmed before the new code came into force, that is to say, before the 1st january, 1909, though.....
Judgment:

Duval, J.

1. In this case the plaintiff sued for declaration of his title to, and for possession of a certain land. His case was that he purchased it in auction-sale in the benami of defendant No. 5 on the 8th August, 1908, and that subsequently he got possession in the name of his benamdar who was in possession for sometime, but that in 1915 his benamdar sold the land to defendants Nos. 1 and 2 and he was dispossessed. He brought a case under Section 9 of the Specific Relief Act and lost it and so he brought this suit. The defence pet up in the written Statement of the vendees was that the plaintiff was never in possession and that defendant No. 6 was not a benamdar and that the suit was barred under Section 66 of the Code of Civil Procedure. Defendant No. 6 who purported to sell the property has put in a written statement stating that he was a benamdar. After issues were framed the first Court tried the issue as to whether the suit lay in view of the provisions of Section 66 of the Code of Civil Procedure and held that it did not. This finding has been upheld in appeal. The second appeal is directed on this point only.

2. Now the sale took place as we have stated on the 8th August, 1908. At that time the Code of 1882 was in force and under,Section 316 of that Code the property purchased in execution of the decree vested on the confirmation of the sale; but the sale was not confirmed until 6th January, 1909, when the Code of 1882 had ceased to operate and had been superseded by the Code Of 1908. Under. Section 65 of the present Code On the confirmation of the sale, the title to the property is to vest hack with retrospective effect from the date of the sale. The argument, therefore, addressed to us is that by the confirmation of the sale under Section 65 of the new Code the plaintiffs title to the property accrued on the 8th August 1908, and, therefore, Section 66 of the Code has no application but that Section 317 Of the old Code applies. The chief difference between the two sections is that whereas under the old Code a suit would lie against the heirs or assignees of a benamdar though not against the benamdar, under Section 66 of the new Code no suit would lie against anyone claiming a title under the certificated purchaser. The learned Vakil for trie appellant has referred to two decisions of this Court, being the case of Promotha Nath Pal v. Sourav Dasi 58 Ind. Cas. 327 : 47 C. 1108 : 24 C.W.N. 1101 : 31 C.L.J. 463 and the case of Makar Ali v. Sarfaddin 70 Ind. Cas. 606P : 50 C. 115 : 27 C.W.N. 183 : 36 C.L.J. 132 : A.I.R. 1923 Cal. 85 to support his argument. But in 'both those cases the sale was confirmed before the new Code came into force, that is to say, before the 1st January, 1909, though in one of them the sale certificate did opt issue until after the new Code came in force and there it was held that the real A.I.R. 1923 Cal. 85 purchaser could maintain a suit against the transferee as his right had already accrued under the old Code. The present case, however, is clearly different. No doubt, Section 65 of the new Code states that when the gale has become absolute the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. But the question really before us is whether on the 1st January, 1909, when the new Code came into force the plaintiffs rights had accrued as a purchaser through the benami of defendant No. 1. In my opinion it had not. In this connection reference must be made to Section 6 of the General Clauses Act which says that when an Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not affect any right acquired or accrued under any enactment so repealed.

3. The only point, therefore; is whether, as a matter of fact, on the 1st January, the plaintiff's right had accrued. Now even if we take Section 65 as dating back the right, it is clear that on the 1st January this sale had not become absolute and so the plaintiff's right had not accrued. Now if the plaintiff's right did not accrue on the 1st January he is clearly bound by Section 66 and if he is bound by Section 66 the plaintiff cannot maintain this suit.

4. In this view, therefore, I would dismiss the appeal with costs.

Mallik, J.

5. I agree.


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