Bombay High Court
Sakharam Govind Kale vs Damodar Akharam Gujar And Keso Govind ... on 29 April, 1885
Equivalent citations: (1885)ILR 9BOM468
JUDGMENT Birdwood, J.
1. The Subordinate Judge wrongly applied article 166 of Schedule II of Act XV of 1887 to the application made to him by the judgment-debtor Sakharam Govind, as that application was not one seeking to set aside, under Section 311 or Section 294 of the Code of Civil Procedure, the sale of the judgment-debtor's immoveable property on the ground of a material irregularity is publishing or conducting the sale, or on the ground that the decree-holder had purchased without the permission of the Court. Moreover, the sale had already been confirmed before the application was made, whereas the application con-templated in Section 311 is evidently one that can be made only before a sale is confirmed. (See Section 312 and Clause (16) of Section 588.) Section 294 was clearly not relied, on by the judgment-debtor; and it is only to cases falling under Section 311 or Section 294 that article 166 of Schedule II of Act XV of 1877, as amended by Act XII of ] 879, applies.
2. The Subordinate Judge was also wrong in referring the judgment-debtor to a suit, inasmuch as the relief sought by him, at all events as against the judgment-creditor, could only be obtained on an application of the kind contemplated in Section 244 (c) of the Code of Civil Procedure. The judgment-debtor sought to set aside the proceedings in execution, which had terminated in the sale of his property, on the ground that he had been kept in ignorance of those proceedings by the fraud of the judgments creditor and others,-the judgment-creditor having (as alleged by the judgment-debtor), agreed, when the first application for execution made by Mm was disposed of, not to present a fresh application, as the judgment-debtor had furnished security for the satisfaction of the decree. The ruling in Paranjpe v. Kanaden I.L.R. 6 Bom. 148 applies to the present case,
3. We must, therefore, reverse the Subordinate Judge's order, and direct him to deal with the application afresh. Whether it will be necessary or proper for him to make any other persons' than the judgement-creditor a party to the proceedings for the purpose of the application, we do not now decide. The costs of this application to be costs in the application before the Subordinate Judge, and to be dealt with by him.