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Gopal Chandra Mukerji Vs. Notobar Kundu - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.53
AppellantGopal Chandra Mukerji
RespondentNotobar Kundu
Cases ReferredBrajabala Das v. Guru Das Man
Excerpt:
civil procedure code (act v of 1908), sections 115, 151, order xxi, rule 58 - claim application, if can he proceeded with after execution sale--inherent power, doctrine of--revisional powers of high court--subordinate court acting in excess of jurisdiction and in violation of ex-press provisions of code. - .....of law raised in this rule is whether it is competent to an execution court to proceed with a claim application under rule 58 of order xxi of the code of 1908 after the execution sale has actually taken place.2. the petitioner, in execution of a decree, dated the 4th april 1910, against one kali dasi debi, attached certain properties. on the 23rd february 1911, the present opposite party preferred a claim but the claim was not adjudicated upon till the 21st august 1911. meanwhile the property had been sold on the 25th april 1911 and purchased by the decree-holder. on behalf of the decree-holder auction-purchaser, it had been contended that after the sale had taken place, the court was do longer competent to proceed with the application under rule 58 and to make on the basis thereof.....
Judgment:

1. The question of law raised in this Rule is whether it is competent to an execution Court to proceed with a claim application under Rule 58 of Order XXI of the Code of 1908 after the execution sale has actually taken place.

2. The petitioner, in execution of a decree, dated the 4th April 1910, against one Kali Dasi Debi, attached certain properties. On the 23rd February 1911, the present opposite party preferred a claim but the claim was not adjudicated upon till the 21st August 1911. Meanwhile the property had been sold on the 25th April 1911 and purchased by the decree-holder. On behalf of the decree-holder auction-purchaser, it had been contended that after the sale had taken place, the Court was do longer competent to proceed with the application under Rule 58 and to make on the basis thereof an order under Rule 60. In oar opinion, this contention is manifestly well founded and must prevail.

3. Rule 60 of Order XXI provides that where, upon the investigation contemplated in rules 58 and 59, the Court is satisfied that the claim ought to be allowed, it shall make an order releasing the property wholly, or to such an extent as it thinks fit, from attachment. It is thus plain that an order under Rule 60 must be made before the sale has taken place. This is also made clear by Sub-rule (2) of Rule 58 which provides for the adjournment of a sale pending the investigation of the claim preferred under Sub-rule (1). Bat it has been argued by the learned Vakil for the opposite party that the Court below had, under Section 151 of the Code, inherent power to allow the claim after the sale and to set aside the sale which had already taken place and had been confirmed. In support of this view, reference has also been made to the cases of Tuffa-zal Hossein v. Raghunath Prasad 7 B.L.R. 186 : 14 M.I.A. 40; HiraLal Mukerji v. Premamoyee Debi 2 C.L.J. 306 at p. 309 and Gurdeo Singh v. Chandrikah Singh 5 C.L.J. 611 : 36 C. 193 : 1 Ind. Cas. 913. It is clear, however, that the doctrine of inherent power has no application to a case of this description. That doctrine is applied when the Court finds it necessary, for the ends of justice or to prevent an abuse of its process, to make an order for which no express provision has been made by the Legislature. Panchanan v. Dwarka Nath 3 C.L.J. 29; Hukum Chand v. Kamalanand 3 C.L.J. 67 : 55 C. 927. In the case before us, Rule 60 plainly indicates that an order upon an application under Rule 58 must be made before the sale has taken place; upon the sale the application by which the claim has been preferred ipso facto terminates. The effect of these statutory provisions cannot be frittered away by an earnest appeal to the doctrine of inherent powers, specially as the objector is not without a remedy. It is open to him to proceed under rules 99 and 100 after the property has been sold and an attempt is made by the purchaser to obtain delivery of possession thereof. It is also open to him to institute a regular suit for the declaration of his right which, if his allegations be true in fact, has not been affected by the execution sale. This, therefore, is a case where the Court would not exercise its inherent powers in contravention of the express provisions of rules 58, 59 and 60 of Order XXI of the Code of 1908.

4. It has finally been contended, on the strength of certain observations in the case of G. P. Cooke v. The Equitable Coal Company Limited 8 C.W.N. 621, that this Court ought not to interfere in the exercise of its revisional jurisdiction in a case of this description. Bat the case of Brajabala Das v. Guru Das Man-dal 3 C.L.J. 293 : 33 C. 487 shows that where a Subordinate Court has acted clearly in excess of its jurisdiction and in violation of an express provision of the Code, this Court will not hesitate to interfere.

5. The result is that this Rule is made absolute and the order of the Court below discharged on the ground that the Court had no jurisdiction to make it after the property had been sold. The petitioner is entitled to his costs of this Rule; we assess the hearing fee at one gold mohur.


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