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Charn Chandra Ghosh Vs. Rai Behari Lal Mitra Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in80Ind.Cas.931
AppellantCharn Chandra Ghosh
RespondentRai Behari Lal Mitra Bahadur
Cases ReferredSantosh Bala Debi v. Ram Chandra Ghate
Excerpt:
civil procedure code (act v of 1908) order xxi, rules 90, 92 - application to set aside sale--notice to opposite party, object of--formal notice, whether necessary--rules of procedure, object of. - .....appeal proceeded upon one single point, namely, the absence of proof of service of notice on the decree-holder. it may be remarked that in this case the decree-holder was the auction purchaser. the learned district judge has found that there was no proof of service of notice of the application on the decree-holder which is necessary to entitle a court to pass an order under rule 90 and in this view of the matter dismissed the petitioner's application for setting aside the sale. this rule was obtained on the ground that the view taken by the court below was wrong and that he bad no jurisdiction to dismiss the petitioner's application for setting aside the sale only on the ground that no notice was served on the decree-holder auction-purchaser. in our judgment there is a great deal of.....
Judgment:

1. This Rule is issued against an order of the District Judge of Barisal reversing an order of the Subordinate Judge of that place setting aside a sale under Order XXI, Rule 90, Civil Procedure Code. The learned Subordinate Judge had held that there were suppression of sale processes and other material irregularities and set aside the sale accordingly. The learned District Judge on appeal proceeded upon one single point, namely, the absence of proof of service of notice on the decree-holder. It may be remarked that in this case the decree-holder was the auction purchaser. The learned District Judge has found that there was no proof of service of notice of the application on the decree-holder which is necessary to entitle a Court to pass an order under Rule 90 and in this view of the matter dismissed the petitioner's application for setting aside the sale. This rule was obtained on the ground that the view taken by the Court below was wrong and that he bad no jurisdiction to dismiss the petitioner's application for setting aside the sale only on the ground that no notice was served on the decree-holder auction-purchaser. In our judgment there is a great deal of force in this contention. Order XXI, Rule 92 no doubt lays down that no order should be made unless notice of the application has been given to all persons affected thereby. The object of this enactment is to give notice of the application to all parties concerned and give them an opportunity of contesting it so that no order may be passed to the prejudice of any party behind his back. This object will equally be achieved if the party has otherwise notice of the application. Rules of Procedure are not made for the purpose of hindering justice, Indrajit Pratap Bahadur Sahi v. Amar Singh 74 Ind. Cas. 747 : 9 C.L.J. 318 : 21 A.L.J. 554 : 4 P.L.T. 447 : (1923) A.I.R. (P.C.) 128 : 1 P.L.R. 345 : 2 Pat. 676 : 33 M.L.J. 233 : 45 M.L.J. 578 : 18. L.W. 728 : 25 Bom. L.R. 1259 : 28 C.W.N. 277 : 50 I.A. 183 (P.C.). If a party to a sale had notice of the application, it would net ordinarily seem necessary that a mere formality should be observed in order to comply with the requirements of the law. This provision is intended more to safeguard the interest of strangers like a stranger auction-purchaser. A view similar to this was taken in the case of Santosh Bala Debi v. Ram Chandra Ghate 67 Ind. Cas. 286. We, therefore, think that the order passed by the 'learned Judge cannot be supported and must be set aside. The case-will, therefore, go back to him for an enquiry as to whether the decree-holder had really any notice of this application or not. It appears from the record at the first Court that the Bale took place on the 10th February in which the decree-holder became the purchaser. The 12th March was fixed for confirmation of sale. On the 10th March this application was made and it was ordered to be put up on the 7th April for hearing and both parties were directed to appear on that date, On the 12th March it was ordered that the execution case be put along with the miscellaneous case. This order may lead one to presume that the decree-holder had notice of the application. Whether he had or not should be determined on proper enquiry and in the present case the petitioner had no opportunity of proving that the decree-holder had notice of the application. The case will, therefore, go back to the learned Judge for enquiry as to whether the decree-holder had any notice of this application; and, if he holds he had he will hear the appeal on the merits.

2. Costs will abide the result. We assess the hearing-fee at one gold mohur.


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