Skip to content


Behari Lal Agwan Vs. Subala Dasi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal1074
AppellantBehari Lal Agwan
RespondentSubala Dasi and anr.
Cases ReferredMukhoda Daasi v. Gopal Chundra Dutta
Excerpt:
- .....dates to show the course of this litigation. the opposite party no. 1 obtained a preliminary ex parte decree against the appellant on the 3rd july 1916 which was followed by the final decree on 16th december 1916. the decree was put into execution and the mortgaged property was sold on the 11th april 1917 and purchased by the decree-holder. the sale was confirmed on 'the 14th may and symbolical possession delivered on the 24th june. shortly after obtaining possession of the property the decree-holder, respondent no. 1, settled the land under a mourasi mokarari lease with respondent no. 2 and subsequently a formal registered pottah was executed on the 13th december, 1917. on the 26th february 1920 the appellant tiled two applications one to have the ex parte decree set aside and the.....
Judgment:

1. This appeal is directed against an order of the District Judge of 24 Perganas rejecting the application made by the appellant under O.21, Rule 90, C.P.C., on appeal from the judgment of the Munsif of Basirhat. The facts are rather complicated but it may be sufficient to give a few dates to show the course of this litigation. The opposite party No. 1 obtained a preliminary ex parte decree against the appellant on the 3rd July 1916 which was followed by the final decree on 16th December 1916. The decree was put into execution and the mortgaged property was sold on the 11th April 1917 and purchased by the decree-holder. The sale was confirmed on 'the 14th May and symbolical possession delivered on the 24th June. Shortly after obtaining possession of the property the decree-holder, Respondent No. 1, settled the land under a mourasi mokarari lease with Respondent No. 2 and subsequently a formal registered pottah was executed on the 13th December, 1917. On the 26th February 1920 the appellant tiled two applications one to have the ex parte decree set aside and the other to have the sale vacated. On the 10th May the lessee (Respondent) No. 2) was impleaded as a party in both the proceedings but she was discharged from the case under Order 9, Rule 13 by the learned Munsif before whom the matter came on for trial, on the ground that she was not a necessary party to those proceedings; though she remains a party in the Order 21, Rule 90 case. On the 24th July a compromise petition was filed in Court by the appellant and the decree-holder in the Order 9, Rule 13 proceeding. Its terms were that if the appellant paid the decree-holder Rs. 2,800 by the 7th August the sale and the ex parts decree would be set aside. The Respondent No. 2 (the lessee from the decree-holder) was not a party to this compromise. On the 7th August the appellant deposited the money in Court but Respondent No. 2 raised an objection that as she was no party to the compromise, it was not binding upon her and that the sale could not be set aside. The learned Munsif, however, held that the lessee was not a necessary party and set aside both the ex parte decree and the sale. There was an appeal by the decree-holder and the leasse against the order setting aside the sale only. The First Appellate Court remanded the case with the observation that the lessee should be impleaded and the case tried on the merits. On the second trial the order setting aside the sale was set aside and the learned Munsif further set aside the order setting aside the ex parte decree as a necessary corollary to his order setting aside the order setting aside the sale and dismissed both the applications. 1 here was no appeal against the order dismissing the application to set aside the ex parte decree, but the appellant appealed against the order refusing to set aside the sale. The appeal was dismissed by the lower Appellate Court. It may be mentioned hero that after the case went back to the First Court on remand an application was made by the appellant under Section 144, C.P.C., for restitution of the properties that were taken possession of by the decree-holder under the ex parte decree. This application was separately numbered and it was also dismissed. There was no appeal against that order. In this Court an appeal has been preferred against the order of the learned District Judge dismissing the appellant's appeal against the order of the Munsif under Order 21, Rule 90 and also a Rule has been obtained in revision against that order. Learned Counsel for the appellants conceded that no second appeals lies to this Court against an order passed by the lower Appellate Court in a case under Order 21, Rule 90. But he submits that the Courts below were wrong and have acted irregularly in not allowing the application for restitution under Section 144, C.P.C. We are, therefore, invited to consider this question only in connection with this matter. In the first place there was no appeal from the order passed by the Munsif under Section 144, C.P.C., to the District Judge and, therefore, no application in revision will lie in this Court. In the second place the order passed by the Munsif under Section 144, C.P.C. is a decree under Section 47, C.P.C, and, therefore, a second appeal lay to this Court from that order if it was passed by the First Appellate Court. On both these grounds the application under Section 115 is incompetent. But the point of jurisdiction is raised in challenging the order under Order 21, Rule 90, namely, that the decree having been set) aside the sale would, ipso facto, fall through and, therefore, the Courts below acted without jurisdiction in refusing the appellants' application to set aside the sale. Reliance has been placed upon the case of Zain-ul-abdin Khan v. Muhammad Asghur Ali Khan [1888] 10 All. 168 and other cases that have followed it. There can be no question, that if in a regular suit the decree which forms the foundation of the sale is set aside, the sale must also fall with it. But all these cases contemplated that the decree-holder was the purchaser in execution of his own decree which is subsequently set aside. There are also cases which say that the right of an innocent purchaser in an auction-sale is not effected by the subsequent reversal of the decree. See the case of Mukhoda Daasi v. Gopal Chundra Dutta [1899] 26 Cal. 734. The authorities on this point are to the effect that where the decree-holder is the purchaser in execution of his ex parte decree and the ex parte decree is set aside the sale stands cancelled and any interest which has accrued to the decree-holder or any one claiming through him must also fail. But where the right of an innocent third party is injuriously affected by the conduct of the parties to the suit, the sale need not fall along with the decree. In the present case if the appellant had succeeded in her application under Order 9, Rule 18, In proving that no summons were served upon him and in getting the decree reversed the sale would have also been set aside and the lessee (Respondent No. 2) could not have been heard in support of her right. But if after the decree-holder has parted with his interest in the property or in the greater portion of it he enters into a compromise with the judgment-debtor behind the back of the lessee, who has come on the land in good faith and gets the decree set aside, the right of the Respondent No. 2 will not, in these circumstances, be affected, (or to hold with the learned Counsel for the appellant that even if a decree is set aside by compromise the Court is bound to set aside such a sale and lease made by the auction-purchaser after it would encourage fraud on the part of the decree-holder; auction-purchaser on bona fide transferees.

2. The result is that both the appeal and the Rule fail, and are dismissed with costs. We assess the heating fee in the appeal at two gold mohurs and in the revision case at one gold mohur. The costs will be paid to Respondent No. 2.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //