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Keshab Chandra Kar and anr. Vs. Rajendra Nath Ghosh - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.101
AppellantKeshab Chandra Kar and anr.
RespondentRajendra Nath Ghosh
Cases Referred and Akikunnissa Btbee v. Roop Lal Das
Excerpt:
civil procedure code (act xiv of 1882), section 248 - transfer of property act (iv of 1882), section 104--rules made by high court--execution--mortgage decree--section 248 not extended to execution of mortgage decree. - .....lower appellate court passed on an application, made under the provisions of sections 311 and 244, civil procedure code, in connection with the execution of a mortgage-decree obtained against the present appellants. the present appellants who made the application contended that the sale of the mortgaged property should be set aside on the ground that no notice as required by the provisions of section 248, civil procedure code, had been served on them prior to the taking of the proceedings in execution. the court of first instance allowed the objection but, on appeal, the lower appellate court has set aside the order of the court of first instance and has dismissed the application. hence this appeal.2. the point which has been argued before us is a pure one of law, namely, whether, after.....
Judgment:

1. This is an appeal against an order of the lower appellate Court passed on an application, made under the provisions of Sections 311 and 244, Civil Procedure Code, in connection with the execution of a mortgage-decree obtained against the present appellants. The present appellants who made the application contended that the sale of the mortgaged property should be set aside on the ground that no notice as required by the provisions of Section 248, Civil Procedure Code, had been served on them prior to the taking of the proceedings in execution. The Court of first instance allowed the objection but, on appeal, the lower appellate Court has set aside the order of the Court of first instance and has dismissed the application. Hence this appeal.

2. The point which has been argued before us is a pure one of law, namely, whether, after the issue by the High Court of the Rules under Section 104 of the Transfer of Property Act, the provisions of Section 248, Civil Procedure Code, can be held to apply to proceedings in execution of mortgage-decrees, that section not having been extended to such proceedings under the Rules issued by the High Court. The lower appellate Court in arriving at its conclusion relied on the rulings of this Court in the cases of Kedar Nath Raut v. Kali Charn Ram 25 C. 703 : 2 C.W.N. 353 and Harish Chandra. Mondol v. Jagabandhu Dutta 12 C.W.N. 283 : 3 M.L.T. 202 : 7 C.L.J. 580, and held that the omission to issue the notice under Section 248, Civil Procedure Code, did not vitiate the proceedings in execution of the respondent's mortgage-decree. The learned Counsel in support of the appeal has contended that the view taken by the lower appellate Court is wrong. He has argued that the provisions of Chapter IV of the Transfer of Property Act are not in conflict with the provisions of the Code of Civil Procedure, so far as they relate to mortgage-decrees, but are supplementary, and he has further contended that the Rules, issued by this Court under Section 104 of the Transfer of Property Act, are Rules for the guidance of the lower Courts in execution of mortgage, decrees and do not derogate from the provisions of the Code of Civil Procedure. He has pointed out that the Transfer of Property Act came into force on the 1st July 1832, while the Code of Civil Procedure came into operation on the 1st June 1882 and he has argued that, as Section 2 of the Transfer of Property Act provides that the Act shall not affect the provisions of any enactment not expressly repealed by it, it follows that the Act did not in any way restrict the operation of the provisions of the Code of Civil Procedure as applicable to the execution of mortgage-decrees. He has drawn our attention to the fact, that from 1882 to 1892, when the Rules were issued by. the High Court under Section 104 of the Transfer of Property Act, the proceedings in execution of decrees in mortgage suits were governed by the provisions of the Code of Civil Procedure and he has pointed out that several sections of the Code, which have not been made applicable to proceedings in execution of mortgage-decrees by the rules of the High Court, either bear internal evidence that they must be taken to apply to them, or are the only provisions, of the law by which such proceedings, in execution could be regulated. He has brought to our notice the decision of the High Court of Madras in the case of Mallikarjunadu Setti v. Lingamurti Pantulu 25 M. 244 (F.B.) and has further contended that no Rules of this High Court could defeat the statutory rights already-existing under the Code of Civil Procedure at the time when they were passed. We are of opinion that, if the question raised, was one which had not been previously considered by this Court, the arguments of the learned Counsel would have deserved our most careful and serious consideration; but the question is one which has been before this Court more than once and is now, in our opinion, concluded by authority, See the Full Bench case of Kedarnath v. Kali Churn 25 C. 703 : 2 C.W.N. 353 and also the case of Hatem Ali Khundkar v. Abdul Gaffur Khan 8 C.W.N. 102; Shyamkishan v. Sundar Koer 31 C. 373 and Akikunnissa Btbee v. Roop Lal Das 25 C. 133. We must, therefore, hold that, so far as this High Court is concerned, there is clear authority which is binding oh us that the whole of Chapter XIX of the old Code of Civil Procedure does not apply to proceedings in execution of mortgage decrees, and that, haying regard to the Rules issued by the Court under Section 104 of the Transfer pt Property Act, the issue of, the notice under Section 248, Civil Procedure Code, was not necessary in the present case.

3. We may mention that any doubt as to the law on the subject has been removed since the passing of the new Code, of Civil Procedure and that the question raised in the present case is not likely to arise again.

4. In the present case, moreover, even if we had held that the issue of the notice was a necessity, its omission would constitute an, irregularity which, in the absence of proof of substantial injury caused thereby to the judgment-debtors, would not be sufficient to justify, us in setting aside the sale. In this case, the lower appellate Court has found that the price realised, at the sale was not inadequate, and we see no reason to differ from that finding. Therefore, the fact which is essential to support the present application is wanting in this case too, the sale, having been confirmed the judgment-debtors would not be entitled to have it set: aside; unless they could prove fraud; but no fraud has been proved and, in the absence of any, such proof, the application in the Munsifs Court must by regarded as one falling under, the provisions of Section 311, Civil Procedure Code, and, as such, was must hold that it was barred by limitation. The result, therefore, is that the present appeal fails and is dismissed with casts. We assess the hearing fee at five gold mohurs.


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