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Surendra Nath Saha Vs. Bola Ram Poddar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal1095,45Ind.Cas.699
AppellantSurendra Nath Saha
RespondentBola Ram Poddar and anr.
Excerpt:
civil procedure code (act v of 1908), order xxi, rules 17, 22 - sale in execution without notice to or substitution of legal representative of deceased judgment-debtor, whether invalid against other judgment-debtor--sale of part of attached properties--proceeds sufficient to satisfy decree--subsequent sale of other lots, validity of. - .....that there was no material irregularity in conducting the sale. it would be noticed that to this appeal keshab's widow is not a party. she is satisfied with the judgment of the courts below, which have found that the interest of her husband was properly sold. now, the point that has been raised in this appeal is this: that, under the provisions of section 50, civil procedure code, the court ought to have issued notice on the widow of keshab as being his representative and that the court had no jurisdiction to sell the property except on an application made to the court to execute the decree against keshab's widow and after serving a notice on her under order xxi, rule 22, civil procedure code, and it is said that the failure of the court to issue a notice under order xxi, rule 22, on.....
Judgment:

Fletcher, J.

1. This is an appeal against the decision of the learned District Judge of the 21 Perganas, dated the 11th August 1917, affirming the decision of the Subordinate Judge at Alipore. The appeal arises in this manner. The appellant along with one Keshab and others had a decree for money obtained against them on the 12th June 1915, and their property duly attached. Then Keshab died. On the 24th August 1915, Keshab's widow applied to set aside the ex parte decree which had been obtained on the 12th June 1915. That application was dismissed for default en the 11th March 1916. On the 20th April 1916, execution was applied for. That was followed by notices and proper publication of the sale proclamation. Eventually, on two dates, namely, on-the 20th and the 21st November 1916, the property attached was sold to a stranger, the respondent to the present appeal. Thereupon1, all the judgment debtors including the widow of Keshab applied to the Court of the Subordinate Judge to set aside the sale in execution. Both the Courts below have found that the attached property was sold for its full value and that there was no material irregularity in conducting the sale. It would be noticed that to this appeal Keshab's widow is not a party. She is satisfied with the judgment of the Courts below, which have found that the interest of her husband was properly sold. Now, the point that has been raised in this appeal is this: That, under the provisions of Section 50, Civil Procedure Code, the Court ought to have issued notice on the widow of Keshab as being his representative and that the Court had no jurisdiction to sell the property except on an application made to the Court to execute the decree against Keshab's widow and after serving a notice on her under Order XXI, Rule 22, Civil Procedure Code, and it is said that the failure of the Court to issue a notice under Order XXI, Rule 22, on an application to execute the decree against Keshab's widow renders not only the sale void as regards the interest of Keshab but as regards the interest of all the judgment debtors. That is a view which, in the circumstances of the case, cannot, I think, be maintained. The decree was a decree for money obtained against these named persons described as carrying on business under a particular style, but each of the judgment debtors, according to the terms of the judgment, was liable to pay the whole of the amount and execution could be taken out as against him for the whole amount. The mere fact that the sale might have been capable of being avoided or void against Keshab's widow cannot affect the sale' as against the other judgment-debtors--more especially so, when the appeal is only preferred on behalf of the other judgment--debtors and Keshab's widow is satisfied with the judgment of the Court holding that the interest of her husband was liable to be sold in satisfaction of the decretal amount. I think the, view put forward by the appellant cannot be sustained. The matter as between the purchaser in execution and Keshab's widow is res judicata by reason of the decision of the Courts below, namely, that the interest that her late husband had in the property was liable to be sold to discharge his judgment-debtor. That point having been adjudicated on, and finally adjudicated on, between the purchaser in execution and Keshab's widow cannot be relied upon by the other parties, who have no interest in Keshab's property at all. I think it is impossible at the instance of the present appellant to dispute the judgments of the learned Judges of the Courts below that the appellant cannot rely upon the irregularity or invalidity of the sale as against Keshab's widow.

2. Then, another point is made that, under the terms of Order XXI, Rule 17 of the Code, the whole sale was void on the ground that the first two lots sold were more than sufficient to satisfy the decretal amount. It is stated that there are other decrees against these judgment-debtors which require satisfaction. But Order XXI, Rule 17, has nothing to do with the invalidity of a sale made to a stranger who bought without notice of the fact that the amount realized by the sale was more than sufficient to satisfy the decree in execution.

3. No grounds have been showh to us in this case, having regard to the findings of fact made by the learned Judge of the lower Appellate Court which are binding on us, why the sale should be set aside. The present appeal, therefore, fails and is dismissed with costs. We asses the hearing fee at one hundred rupees for the auction-purchaser and at one gold mohur for the decree-holder.

4. Shamsul Huda, J.--I agree.

5. No. 417 of 1917.

6. This appeal will be governed by the above judgment. It is accordingly dismissed with costs, one hundred rupees to the auction-purchaser and one gold mohur to the decree-holder.


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