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1 - 8 of 8 (0.72 seconds)Section 47 in The Code of Civil Procedure, 1908 [Entire Act]
Desh Bandhu Gupta vs N.L.Anand & Rajinder Singh on 17 September, 1993
No doubt, the procedural requirement is mandatory. The court is
obliged under the rule to examine whether the whole of the attached
property of the judgment-debtor or a portion alone is to be sold to
satisfy the decree. The question whether the property is one or more
is not of much significance. Even if there is only one property, on
enquiry, if the court is satisfied that a portion thereof alone is
sufficient to satisfy the decree, only such portion should be sold. The
mandate under the above rule is not a matter of discretion but an
obligation cast upon the court and, so much so, any violation of the
rule would be illegal. The jurisdiction of the court to conduct the sale
to satisfy the decree debt extend only up to the point at which decree
is satisfied and that being so, it has an obligation to ensure that only
such property or portion of the property of the judgment-debtor as
may be necessary to satisfy the decree is sold. The apex court in
Desh Bandhu Gupta v. N.L.Anand & Rajinder Singh [ (1994) 1
S.C.C. 131] has held in that regard as follows:
Ambati Narasayya vs M. Subba Rao & Anr on 6 October, 1989
11. The obligation cast on the executing court to examine
whether the whole property attached or a portion thereof as may be
necessary to satisfy the decree debt has been highlighted earlier also
by the apex court in Ambati Narasayya v. M.Subba Rao (AIR 1990
S.C. 119) and other decisions referred to by the learned counsel for
the appellant which have been referred to earlier. The decisions of the
apex court on that point leave no room for any doubt that if the sale is
proceeded without examining that question and substantial injury
thereof is resulted, then such sale could be attacked as one without
jurisdiction since the procedural mandate under Order 21 Rule 64
C.P.C. had been infringed. Bearing in mind the legislative mandate
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under Order 21 Rule 64 C.P.C. and the decisions of the apex court,
the sale impugned in the present case has to be examined with
reference to the materials involved.
Shyamlal Purohit And Anr. vs Jagannath Ray And Anr. on 3 December, 1968
So long as the company exists, i.e., before its dissolution a
shareholder cannot claim any interest in the assets of the company is
reiterated by the apex court in Shyamlal Purohit v. Jagannath Ray
[ (1970) 40 Comp. Cases 138] wherein the competency of a
shareholder to impeach the sale of the property of the company under
Order 21 Rule 90 C.P.C. as in the present case arose for consideration.
The apex court held in categorical terms that such an application by a
shareholder of the company to impeach the sale of its property is not
entertainable and he has no locus standi to maintain an application
under Order 21 Rule 90 C.P.C. The apex court has held thus:
Chiranjit Lal Chowdhuri vs The Union Of India And Others on 4 December, 1950
In an earlier decision on the same point, Charanjit Lal v. Union of
India (AIR(38) 1951 S.C. 41) while dealing with the question whether
a shareholder of a company can impeach the constitutional validity of
an Act under which the company had been taken over, as violative of
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fundamental rights, the apex court observed as follows:
Section 99A in The Code of Civil Procedure, 1908 [Entire Act]
Bacha F. Guzdar vs Commissioner Of Income-Tax, Bombay on 28 October, 1954
6. Point No.1 :- Order 21 Rule 90 C.P.C. deals with an
application for setting aside sale of an immovable property sold in
execution of a decree on the ground of material irregularity or fraud.
However, such an application is entertainable only at the instance of a
decree-holder, or the purchaser, or any other person entitled to share
in a rateable distribution of assets, or whose interests are affected by
the sale. The appellant, a shareholder of the judgment-debtor-
company can maintain his application only if he is able to satisfy that
his interest is affected by the sale. The primary question then emerges
for consideration is whether the appellant, a shareholder of the
judgment-debtor- company, which is sui juris, has got any interest in
the assets of the company. A shareholder, no doubt, acquires the
right to participate in the profits of the company, but it is not possible
to hold that he has any interest in the assets of the company. Position
of a shareholder with respect to the company's assets is explained by
the apex court in Bacha F. Guzdar v. Commissioner of I.T.,
Bombay (AIR 1955 S.C. 74) and the same is as follows:
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