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AjiuddIn Ahamed Vs. L. Khoda Bux Khondkar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in50Ind.Cas.5
AppellantAjiuddIn Ahamed
RespondentL. Khoda Bux Khondkar and ors.
Cases ReferredBibi Sharofan v. Mahomed Habibuddin
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 90 - execution of decree--sale, application to set aside--auction-purchaser, whether necessary party--purchaser not made party till after expiry of limitation, effect of. - 1. this rule was obtained by one of the auction-purchasers who purchased the property of the judgment-debtor at a sale in execution, calling upon the opposite party, the judgment-debtor, to show cause why the judgment and order should not be set aside. the facts are perfectly simple. certain property of the judgment-debtor was offered for sale and was purchased by two persons. the sale took place on the 5th may 1916. on the 4th october 1917 the judgment-debtor made an application under the provisions of order xxi, rule 90, to have the sale set aside. to that application he only made one of the auction-purchasers a party. on the 8th october 1917, the other auction-purchaser was added as a party. it is common ground that that was beyond the time fixed by the indian limitation act for making.....
Judgment:

1. This Rule was obtained by one of the auction-purchasers who purchased the property of the judgment-debtor at a sale in execution, calling upon the opposite party, the judgment-debtor, to show cause why the judgment and order should not be set aside. The facts are perfectly simple. Certain property of the judgment-debtor was offered for sale and was purchased by two persons. The sale took place on the 5th May 1916. On the 4th October 1917 the judgment-debtor made an application under the provisions of Order XXI, rule 90, to have the sale set aside. To that application he only made one of the auction-purchasers a party. On the 8th October 1917, the other auction-purchaser was added as a party. It is common ground that that was beyond the time fixed by the Indian Limitation Act for making the other auction-purchaser a party. The question that we have now to decide is whether both the auction-purchasers were necessary parties to the application. It is said that they were not and reliance was placed upon a decision of this Court under Section 311 of the earlier Code of Civil Procedure (Act XIV of 1882) to show that it was not necessary to have either of the auction-purchasers as a party to the application. The decision relied upon is the case of Surendra Mohini Debi v. Loharam Chattopadhya 14 Ind. Cas. 67 : 39 C. 687 : 16 C.W.N. 570. It will be noticed that in another case reported in the same volume, namely, the case of Menajuddi Biswas v. Toam Mandal 15 Ind. Cas. 176 : 39 C. 881, it was held that the auction-purchaser was not a necessary party to a proceeding for setting aside a sale, and there the Court relied upon another decision, namely, the decision in the case of Bibi Sharofan v. Mahomed Habibuddin 10 Ind. Cas. 148 : 13 C.L.J. 535 : 15 C.W.N. 685 which was an express authority to that effect. However, we are not now considering this case under the Code of 1882 but under the present Code of Civil Procedure. It is quite clear that under the present Code the auction-purchaser is a necessary party It is only necessary to refer to the proviso to Order XXI, Rule 92, Sub-rule (2), to show that it is quite clear that the auction-purchaser must be a party to the application. That being so, the Judge had no jurisdiction to hear the case, one of the auction purchasers not being a party arid not being added until after the expiration of the period fixed by law for making the auction-purchaser must be a party. Therefore, we make the Rule absolute and set aside the judgment and the order passed by the learned District Judge and order that the opposite party must pay the costs of this Rule, which we assess at one gold mohur.


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