Patna High Court
Bibi Jamila Khatoon And Ors. vs Dayanand Thakur And Ors. on 13 January, 1928
Equivalent citations: 107IND. CAS.848, AIR 1928 PATNA 272
JUDGMENT Adami, J.
1. A decree having been passed against the father of the appellants together with other judgment-debtors and the property of the appellants having been put up for sale in execution of the decree and sold to a third person, the appellants came forward with an application under Section 47 and under Order XXI, Rule 90 of the Code of Civil Procedure seeking to have the sale set aside. The objections put forward to the sale were firstly, that there had been irregularities in connection with the proclamation and the process leading to the sale, and, secondly, that the decree in execution of which the property was sold was in fact a nullity inasmuch as the father of the appellants had died before the decree in the suit was passed.
2. The Courts below have rejected the application of the appellants finding in the first place, that there was no such irregularity as would warrant setting aside the sale and, secondly, that the two grounds put forward in the petition could not form the subject of one and the same application. The Courts below have held that a prayer under Section 47 of the Code could not be joined in one application with a prayer under Order XXI, Rule 90 and, therefore, they rejected the application to set aside the sale on the ground of the decree being a nullity.
3. It has been decided by a Bench of this Court that in execution proceedings the objection can be put forward that the decree was a nullity since one of the judgment-debtors had died before the decree was passed. Neither the Courts below nor the Advocate in this Court have put forward any decision to the effect that a prayer under Section 47 cannot be joined with a prayer under Order XXI, Rule 90 in one application and there seems to be no good reason for disallowing the joinder of the two applications. The application of the appellants was to have the sale set aside, and it would be unreasonable that, because there were two reasons for setting aside the sale, there must be two applications. It is only reasonable that the Executing Court should deal with every objection which the judgment-debtors put forward in one and the same proceeding.
4. The result is that the appeal must be allowed and the Executing Court, having disposed of the objection under Order XXI, Rule 90, should now enquire into the objection under Section. 47. Costs in the Courts below will follow the result.
Macpherson, J.
5. I agree. It is admitted that neither on principle nor on authority can the orders of the Courts below be supported. It may further be indicated that had it, in fact, been necessary for the objectors to make an election in the first Court, that Court ought to have put them to their election and not have itself chosen at a late stage which of the two objections it should consider and which it should not consider.