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Nareshchandra Mitra Vs. Molla Ataul Haq - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in129Ind.Cas.779
AppellantNareshchandra Mitra
RespondentMolla Ataul Haq
Cases ReferredThakur Barmah v. Jiban Ram Marwari
Excerpt:
execution sale - wrong description in writ of attachment--validity of sale. - .....but that the attachment was made of no. 48-1. the question in the appeal, therefore, is whether a sale held without attachment is necessarily bad.2. the appellant decree-holder contends that the omission to attach is a mere irregularity, while the respondent judgment-debtor relies upon order xxi, rule 64 of the code and two decisions, namely, the decision of fletcher, j. in panchanan das majumdar v. kunja behari malo 42 ind. cas. 259 and that of the judicial committee in thakur barmah v. jiban ram marwari 21 ind. cas. 936 : 41 c. 590 : 41 i.a. 38 : 18 c.w.n. 313 : 15 m.l.t. 137 : 12 a.l.j. 156 : 19 c.l.j. 161 : 26 m.l.j. 89 : 16 bom. l.r. 156 : (1914) m.w.n. 118 (p.c.) for the proposition that the sale was without jurisdiction.3. the question arose under act viii of 1859, in the case of.....
Judgment:

1. In this case, the Subordinate Judge has allowed an application under Order XXI, Rule 90 of the Code of Civil Procedure, and set aside a sale on the ground that there was no legal attachment, as the writ of attachment gave an inaccurate description of the property sold. The boundaries of the property were correctly given, but instead of describing it as 46-8, Canal East Road, No. 46-1 was given. He held that there was in fact no attachment of the property to be sold, i.e., 'No. 46-6, but that the attachment was made of No. 48-1. The question in the appeal, therefore, is whether a sale held without attachment is necessarily bad.

2. The appellant decree-holder contends that the omission to attach is a mere irregularity, while the respondent judgment-debtor relies upon Order XXI, Rule 64 of the Code and two decisions, namely, the decision of Fletcher, J. in Panchanan Das Majumdar v. Kunja Behari Malo 42 Ind. Cas. 259 and that of the Judicial Committee in Thakur Barmah v. Jiban Ram Marwari 21 Ind. Cas. 936 : 41 C. 590 : 41 I.A. 38 : 18 C.W.N. 313 : 15 M.L.T. 137 : 12 A.L.J. 156 : 19 C.L.J. 161 : 26 M.L.J. 89 : 16 Bom. L.R. 156 : (1914) M.W.N. 118 (P.C.) for the proposition that the sale was without jurisdiction.

3. The question arose under Act VIII of 1859, in the case of Macnaghten v. Mahabir Pershad Singh 9 C. 656 : 10 I.A. 25 : 11 C.L.R. 494 : 4 Sar. 417 : 4 Shome L.R. 285 : 7 Ind. Jur. 164 (P.C.) but was given up and so was not decided. It also arose under that Act in the case of Sharoda Moyee Burmonee v. Wooma Moyee Burmonee 8 W.R. 9 in which it was held that an attachment was not an essential preliminary to a judicial sale. It again arose under the Code of 1882 (compare Section 284, of which the wording was the same as in Order XXI, Rule 64 of the present Code in Kishory Mohan Roy v. Mahomed Mujaffar he ssein 18 C. 188 where it was held that the attachment is a measure resorted to for the protection of the decree-holder and the purchase against intermediate alienation, and that, after a sale has been confirmed, it is not to be considered a nullity because there was no attachment. This view was approved of in the case of Tincouri Debya v. Shib Chandra Pal Chowdhury 21 C. 639. Absence of attachment has been considered a mere irregularity in Sheodhyan v. Bholanath 21 A. 311; Sasirama Kumari v. Meherbam Khan 9 Ind. Cas. 918 : 13 C.L.J. 243; Muthiah Chetty v. Palaniappa Chetty 70 Ind Cas. 432 : 45 M. 90 : (1921) M.W.N 764 : 41 M.L.J. 594 : 15 L.W. 190 : A.I.R. 1922 Mad. 447 and Ma Pwa v. Mahomed Tambi 77 Ind Cas. 368 : 1 R. 533 at p. 537 : A.I.R. 1924 Rang. 124.

4. The case of Panchanan Das Majumdar v. Kunja Behare Malo 42 Ind. Cas. 259 is the only case of this Court, in which a different view has been taken. We are unable to agree in the interpretation that case has given to the decision of the Judicial Committee in the case of Thakur Barmah v. Jiban Ram Marwari 21 Ind. Cas. 936 : 41 C. 590 : 41 I.A. 38 : 18 C.W.N. 313 : 15 M.L.T. 137 : 12 A.L.J. 156 : 19 C.L.J. 161 : 26 M.L.J. 89 : 16 Bom. L.R. 156 : (1914) M.W.N. 118 (P.C.) upon which it purports to proceed. In the case before the Judicial Committee, the property that was under attachment and sold was a 6 annas share of a mehal subject to a mortgage and after the sale the purchaser applied for correction of the certificate of sale by adding the word 'not' to the description of the property, the result of which would be to pass an unencumbered 6 annas share, an entirely different property from what was attached and sold, The case is no authority for the proposition that an auction is invalid for want of attachment, even though the sale proclamation correctly mentioned and described the property which is sold.

5. The order appealed from must, therefore, be set aside and the case remanded to the Court below to take evidence in respect of the application under Order XXI, Rule 90, Civil Procedure Code, which has not been done and to dispose of it as a whole and in accordance with law.

6. The appeal is allowed. Costs of the appeal will be costs in the cause, hearing-fee 3 gold mohurs.


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