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Kunjolal Pal and anr. Vs. Idurali Sardar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal82,97Ind.Cas.757
AppellantKunjolal Pal and anr.
Respondentidurali Sardar and ors.
Cases ReferredBalkrishna v. Masuina Bibi
Excerpt:
civil procedure code (act v of 1908), sections 7, 94, 95, order xxxviii, rule 5, order l - provincial small cause court, power of, to attach moveables before judgment--orders excluded from jurisdiction of small cause court. - .....purchased it at the sale. this sale was duly confirmed on the 18th february 1919. with regard to keshab's share, to which also this appeal relates, their case was that they purchased the share of keshab from his heirs on the 19th september 1919. the defendants denied the plaintiffs' title. they denied that the plaintiffs had ever purchased the land. they further claimed that they were entitled to buy sabdhan's share by virtue of pre-emption.2. the first court decreed the plaintiffs' suit to the extent of 7 annas 17-20/21 gandas. on appeal the plaintiffs' suit was entirely dismissed. the learned subordinate judge held that on account of certain irregularities the sale by which the plaintiffs purchased the property of sabdhan is neither legal nor valid and that the plaintiffs had not.....
Judgment:

Cuming, J.

1. This appeal arises out of a suit for partition brought by the plaintiffs in which they sought for the partition of a certain property on the allegation that they had purchased 10 annas odd gandas share in it. The property in question belonged to a Mahomedan family of whom the ancestor was one Hanif. The plaintiffs alleged that they had purchased the shares of two of the sons of Hanif, namely, Keshab and Sabdban. So far as regards the share of Sabdhan their case was that they obtained a decree against Sabdhan in 1918. In execution of this decree Sabdban's interest in the holding was sold and they themselves purchased it at the sale. This sale was duly confirmed on the 18th February 1919. With regard to Keshab's share, to which also this appeal relates, their case was that they purchased the share of Keshab from his heirs on the 19th September 1919. The defendants denied the plaintiffs' title. They denied that the plaintiffs had ever purchased the land. They further claimed that they were entitled to buy Sabdhan's share by virtue of pre-emption.

2. The first Court decreed the plaintiffs' suit to the extent of 7 annas 17-20/21 gandas. On appeal the plaintiffs' suit was entirely dismissed. The learned Subordinate Judge held that on account of certain irregularities the sale by which the plaintiffs purchased the property of Sabdhan is neither legal nor valid and that the plaintiffs had not acquired any title under it. So far as regards the share of Keshab the learned Subordinate Judge held that the document by which the plaintiffs purported to purchase the property from the heirs of Keshab was a collusive document and that the plaintiffs did not succeed in proving that they had purchased the share of Keshab.

3. In appeal Mr. Mitter has urged on behalf of the plaintiffs-appellants that it is not open to the defendants who are third parties to raise the question of irregluarity in the sale. He contends that the only person who could raise the question would be either the decree-holder or a person whose interest was affected by the sale, that these persons could only raise the question under the provisions of Order 21, Rule 90, Civil P.C. This contention, I think, is correct. So far as regards the third party it is not open to them to challenge the validity of the sale. It is not contended for the respondents that the sale was void. The irregularities of which they complain were admittedly irregularities which might or might not render the sale voidable. But it would be voidable only at the instance of the judgment-debtor whose interests were affected by the sale and the judgment-debtor alone could get the sale set aside if he succeeded in proving that he had suffered substantial loss by reason of the irregularities. The irregularities, if there were any, were cured by the certificate of sale. To succeed in their defence the respondents must be able to set aside the sale. If they cannot set aside the sale the title of the plaintiffs is perfectly good title. I am, therefore, of opinion that it would not be open to the defendants to raise the defence that the sale would not be a valid one on account of irregularities; and so far as regards the property which the plaintiffs acquired from Sabdhan the appeal must succeed.

4. With regard to the property which that plaintiffs acquired by purchase from the heirs of Keshab the learned vakil who appeared for the appellants raised certain objections, but finally abandoned this part of the case. The result must be that the appeal partly fails. The plaintiffs are entitled to a declaration of their title to that portion of the property which belonged to Sabdhan, namely, 4 annas 19-20/21 gandas and that they are entitled to the possession of it on partition. The suit must be remanded to the trial Court in order to effect a partition in accordance with law. The parties will be entitled to their costs in all the Courts in proportion to their respective success.

Page, J.

5. I agree. The plaintiffs claim as co-sharers an interest in property which they purchased at an execution sale. At the time of the sale the defendants were not among the class of persons who were entitled to apply to set aside the sale under Order 21, Rule 90. At that time they had no interest in the property and, therefore, they had no interest which could be affected by the sale. The plaintiffs in support of their claim produced the sale certificate. The defendants resisted their claim upon the ground that the sale was invalid and passed no title to the plaintiffs. The sale was impeached upon the ground of certain irregularities in the conduct thereof.

6. Now, the alleged irregularities if proved, would render the sale voidable : see Tasadduk Basul Khan v. Ahmad : Husain [1894] 21 Cal. 66 and Radha Krishna v. Bisheswar Sahay A.I.R. 1922 P.C. 336 at the instance of the person who could apply to set if; aside under Order 21, Rule 90. The defendants were not of that class of persons. The sale not having been set aside under Order 21, Rules 89 to 91, the sale became absolute, and a sale certificate was granted to the plaintiff's under Order 21, Rule 92. The effect of the issue of the sale certificate was to cure any such irregularities as those under consideration : see Balkrishna v. Masuina Bibi [1883] 5 All. 142. Thereafter, those persons who might have avoided the sale under Order 21, Rule 90 were no longer competent to avoid it on the ground of irregularity in publishing or conducting the sale. It would seriously diminish the utility of sales hold in execution of decrees if persons such as the defendants, who could not have applied to avoid the sale under Order 21, Rule 90, and who acquired an interest in the property after the sale had become absolute and the sale-certificate had been issued, were entitled to challenge the validity of the sale merely on the ground of irregularity. In my opinion, they possess no such right. The defence, therefore, fails with respect to the plaintiffs' share in this property; and I agree with the order that has been proposed.


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