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1 - 4 of 4 (0.44 seconds)Ramabhadra Naidu vs Kadiriyasami Naicker on 25 February, 1921
It was held that the judgment-debtor cannot subsequently object that the whole proceeding had been vitiated and therefore, the sale ought to be set aside and that Sec. 47 operated as a bar. A similar view has been expressed by the Privy Council in Ramchandra Naidu v. Kadiriyasami Naicker, AIR 1922 PC 252 = 48 Ind App 155 in which the purchaser in a sale under a mortgage decree had been given a sale certificate which plainly included certain property and had been put in possession. It was held by the Privy Council that in these circumstances it was not open to the court in a subsequent sit by the mortgagor's representative to hold by reference back to the mortgage deed that the property in question was not sold under the decree.
Bhagwati Saran vs Gargi Din And Anr. on 10 August, 1949
Mr. S.V. Jayaraman appearing amicus curiae drew my attention to Bhagwati Saran v. Gargi Devi, as the only case which could be considered as taking a different view. For one thing it is before the decision of the Supreme Court above cited and secondly the learned single Judge who decided the case appears to proceed on the view that the auction purchaser there was a third party and that it would be a case of dispute between the judgment debtor and his own representative. This being the legal position I fail to see how an independent suit can be maintained. The claim of the judgment debtor in the present suit is that the decree cannot be satisfied by proceeding against the A schedule property and that the A schedule property is not the property which has been the subject of mortgage and the mortgage decree. It is the court that granted the decree that should properly go into the question whether the decree can be satisfied by proceeding against the A schedule property. In my view it is a matter relating to execution, discharge and satisfaction of the decree.
Rajendra Prasad And Ors. vs Jai Prakash Pandey And Ors. on 5 March, 1957
"The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can? The executing court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the court executing the decree can determine it. It is a matter distinctly relating tot he execution discharge or satisfaction of the decree and so, under Sec. 47 C.P.C. it can only be determined by the court executing the decree." A decision in a case more or less similar to the matter now before me is found in Rajendra Prasad v. Jai Prakash Pandey, . There also the question was as to the identity of the property the subject of a mortgage decree. The later suit in that case was by the mortgagors. The mortgagee had earlier brought suit on the mortgagee for sale of the mortgaged properties. In the plaint in the mortgage suit the property in dispute was described in two schedules, schedule 1 describing the property with reference to old survey numbers and schedule 2 describing the property with reference to new survey numbers. The suit ended in a compromise decree, and the dispute as to the identity of the property the subject of the mortgage, in the execution proceedings was raised in the later suit. The mortgagors claimed in the later suit that a particular area of which possession had been taken in pursuance of the mortgage decree was not included in the mortgage bond and that the property was wrongly sold in execution and purchased. According to the mortgagors, the mortgaged property was described correctly in schedule 1 and not in schedule 2, while according to the mortgagees and those claiming under them the mortgaged lands had been correctly described only in schedule 2. The compromise decree provided for the sale of the properties described in schedule 2. One of the questions that was mooted in that case was whether there was an estoppel by the consent decree. The learned single Judge who originally disposed of the case dismissed the suit on the ground of estoppel and by reason of the bar under Sec. 47 C.P.C. On appeal under the Letters Patent, with reference to the bar under S. 47 C.P.C. the learned Judge observed thus:
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