Search Results Page
Search Results
1 - 10 of 10 (0.55 seconds)Amar Nath vs Firm Chotelal Durgaprasad And Anr. on 23 August, 1938
They were also considered and distinguished in a recent Bench decision of this Court in the case of Kamla Prasad Missir v. Chanchal Tewari, 1967 BLJR 629 : (AIR 1967 Pat 430) Reiving on the ratio of the Full Bench decision in the case of Amar Nath v. Firm Chotelal Durga Prasad. AIR 1938 All 593 (FB), it was held that rights of a decree-holder who has purchased at auction sale are limited to those granted under Order XXI Rules 91 and 92 of the Code of Civil Procedure and if the auction sale is confirmed that becomes res judicata between him and the Judgment-debtor and he cannot reopen the matter by mere application for further execution unless he can set the order confirming the sale aside and as long as the sale held stands, the decree-holder cannot execute his decree on the allegation that his decree has not been satisfied in full. That was a case of a partial failure of the consideration and not of complete failure of the consideration as it is in the case before us and therefore, it may be said that the facts of the two cases are not exactly similar: but it appears that in the case after a stranger had obtained a decree that he had title to the 3/4th interest in the property sold in a suit under Order XXI Rule 63 of the Code of Civil Procedure, the decree-holder filed an application before the executing court seeking permission to execute his decree for realisation of 3/4th of the decretal amount. It was registered as a miscellaneous case and an order was passed in it granting permission to the decree-holder to levy fresh execution. That order can very well be said to be an order impliedly setting aside the sale but their Lordships ignored that order altogether and held that the fresh executions levied by the decree-holder were not maintainable. On the authority of that decision the order passed under Order XXI Rule 101 of the Code of Civil Procedure in the case before us directing the decree-holder to few fresh execution has also to be ignored.
Janak Raj vs Gurdial Singh And Anr on 8 November, 1966
9. Reference may also be made to a recent decision of the Supreme Court in the case of Janak Raj v. Gurdial Singh, 1967 BLJR 639 : (AIR 1967 SC 60). In that case after the sale was held and before it could be confirmed, the ex parte decree, in execution whereof the sale was held, itself was set aside. The executing court had stayed the execution of the decree, i. e the confirmation of the sale till the disposal of the application for setting aside the ex parte decree. After setting aside of the ex parte decree the auction-purchaser made an application for revival of the execution proceedings and for confirmation of the sale The Judgment-debtor objected to it contending that the application for revival of the execution proceedings was not maintainable after setting aside the ex parte decree. The executing court overruled the objection of the Judgment-debtor and confirmed the sale. The order was affirmed by the first appellate court but a single Judge of the Punjab High Court who heard the second appeal and a Bench too of the same court which heard the Letters Patent Appeal from the said order of the single Judge, took a different view from the two courts below and the order confirming the sale was held to be illegal.
Nagendra Nath Ghosh vs Sambhu Nath Pandey on 12 May, 1924
Their Lordships approved of the decision in the case of Nagendra Nath Ghosh v. Sambhu Nath Pandey, ILR 3 Pat 947 : (AIR 1925 Pat 106) that whereas under the Code of 1882 it was optional to enforce repayment of the purchase money upon setting aside of a sale by having recourse to the procedure provided for execution of a decree for money and the auction-purchaser was not limited to that remedy which was not an exclusive remedy but he could, if he so chose, bring a regular suit to enforce payment of the purchase money, under the present Code no such option is left to him and his only remedy is by way of an application under Order XXI Rule 91 of the Code, and observed that the auction purchaser, therefore, loses the purchase money deposited by him and the sale stands though ineffective against third parties if the judgment-debtor has no saleable interest in the property and if the auction-purchaser has lost remedy under Order XXI, Rule 91.
Section 47 in The Code of Civil Procedure, 1908 [Entire Act]
Section 74 in The Code of Civil Procedure, 1908 [Entire Act]
Section 36 in The Code of Civil Procedure, 1908 [Entire Act]
Benode Sahu vs Dilwar Jama Khan on 14 July, 1952
Both the decisions are, therefore, distinguishable and are of no help to the respondent in the case before us. These two decisions were considered and distinguished in Benode Sahu's case. AIR 1953 Pat 9.
Babu Radha Kishun And Ors. vs Kashi Nath on 24 November, 1925
8. Reliance was placed by learned counsel for the respondent on two decisions of this Court (1) in the case of Radha Kishun Lal v. Kashi Lal ILR 2 Pat 829 : (AIR 1924 Pat 273) and (2) in the case of Mt Bibi Umatul Rasul v. Mt Lakho Kuer, ILR 20 Pal 261 (AIR 1941 Pat 405) In both these cases there were suits by strangers in which their title to the property sold had been declared in presence of the judgment-debtor as well as the decree-holder auction-purchaser Therefore decree in the suit that the stranger had title to the property old and the judgment-debtor had no title to it was binding on the Judgment-debtor in subsequent proceedings, Further the question in Radha Kishun Lal's case really was one of Limitation only and in the case of Musammat Bibi Umatul Rasul the suit was under Order XXI Rule 63 of the Code of Civil Procedure and Manohar Lall. J who delivered the judgment Chatterji. J. agreeing, observed that the effect of the derision in such a suit was to shake the very foundation of the sale.
Kamla Prasad Missir vs Chanchal Tewari on 19 January, 1967
They were also considered and distinguished in a recent Bench decision of this Court in the case of Kamla Prasad Missir v. Chanchal Tewari, 1967 BLJR 629 : (AIR 1967 Pat 430) Reiving on the ratio of the Full Bench decision in the case of Amar Nath v. Firm Chotelal Durga Prasad. AIR 1938 All 593 (FB), it was held that rights of a decree-holder who has purchased at auction sale are limited to those granted under Order XXI Rules 91 and 92 of the Code of Civil Procedure and if the auction sale is confirmed that becomes res judicata between him and the Judgment-debtor and he cannot reopen the matter by mere application for further execution unless he can set the order confirming the sale aside and as long as the sale held stands, the decree-holder cannot execute his decree on the allegation that his decree has not been satisfied in full. That was a case of a partial failure of the consideration and not of complete failure of the consideration as it is in the case before us and therefore, it may be said that the facts of the two cases are not exactly similar: but it appears that in the case after a stranger had obtained a decree that he had title to the 3/4th interest in the property sold in a suit under Order XXI Rule 63 of the Code of Civil Procedure, the decree-holder filed an application before the executing court seeking permission to execute his decree for realisation of 3/4th of the decretal amount. It was registered as a miscellaneous case and an order was passed in it granting permission to the decree-holder to levy fresh execution. That order can very well be said to be an order impliedly setting aside the sale but their Lordships ignored that order altogether and held that the fresh executions levied by the decree-holder were not maintainable. On the authority of that decision the order passed under Order XXI Rule 101 of the Code of Civil Procedure in the case before us directing the decree-holder to few fresh execution has also to be ignored.
1