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1 - 10 of 11 (0.31 seconds)The Code of Civil Procedure, 1908
C. Ganapathi Mudaliar vs Krishnamachariar And Ors. on 17 February, 1914
4. The second question is whether we should grant leave in this particular case and whether the point in dispute is of general public importance. The point in dispute is whether it is open to the judgment-debtor to come to Law Court and ask it to declare that the sale is a nullity after the court has already confirmed the sale. Learned counsel for the opposite party admits that the point is of general public importance; but his contention is that the point is settled by the decision of Their Lordships of the Privy Council in -- 'Ganapathy Mudaliar v. Krishnamachariar', 45 Ind App 54 (PC), and therefore the law being settled the case is not a fit one for appeal to the Supreme Court. Learned counsel for the applicants concedes that if the law is settled by a decision of the highest Court, it would not be proper for this court to grant a certificate under Article 133(1)(c), but his contention is that the law in this case is not settled. What we have therefore to see is whether the law on this point is settled or not.
Section 47 in The Code of Civil Procedure, 1908 [Entire Act]
Article 133 in Constitution of India [Constitution]
Section 99 in The Transfer Of Property Act, 1882 [Entire Act]
Munshi Mahomed Ali Mia vs Srimati Kiberia Khatun on 6 January, 1911
In -- 'Mahomed Ali v. Kiberia Khatun', 9 Ind Cas 66 (Cal), a Bench of the Calcutta High Court held that where the sale price was not paid at all, the sale could not be treated to be a sale under the Code. They therefore decreed the suit against the auction purchaser. It is enough to say that this case is in direct conflict with the cases of -- 'Ashutosh Sikdar', (35 Cal 61 FB) and -- 'Ganapathy Mudaliar', (45 Ind App 54 PC), which we have mentioned above. It further appears that the learned Judges were not very sure of what they were deciding, for they made the following observations at the end of their judgment.
Sm. Annapurna Dasi vs Bazley Karim Fazley Moula And Ors. on 19 August, 1940
Here also the balance of the purchase price had not been paid, and a learned Single Judge held, following --'Annapurna Dasi's case', that the sale was a nullity, and could be set aside on an application under Section 47 even after confirmation of sale.
Haji Inam Ullah vs Mohammad Idris on 8 March, 1943
14. Then we come to -- 'Haji Inam Ullah v. Mohammad Idris', AIR 1943 All 282. It is enough to say that in this case, the objection was taken before the confirmation of sale, though the application in which that objection was taken was mixed up with an application under Order XXI, Rule 90, and the judgment-debtor withdrew the application under Order XXI, Rule 90 in order to proceed with his application under Order XXI, Rule 89. The case, however, proceeds on the assumption that the objection relating to Order XXI, Rule 85 had been taken before the confirmation.
Satdeo Koeri vs Suraj Bali Singh And Anr. on 22 October, 1946
15. The next case is -- 'Satdeo Koeri v. Suraj Ball Singh', AIR 1948 All 16. In this case it was held that the court making the sale had no jurisdiction. The case is therefore clearly distinguishable because in the cases of 'Ashutosh Sikdar', (35 Cal 61 FB) and --Ganapathy Mudaliar', (45 Ind App 54 PC), it is presumed that the court making the sale had jurisdiction to sell the property.