Kishan Lal v. Umrao Singh

Aikman, J.:— This is an appeal from an order of remand made by the learned Additional Judge of Aligarh in execution proceedings. The respondent, Umrao Singh, on the 13th of November 1895, mortgaged certain property to one Kishan Lal. The mortgagee brought a suit against the respondent. In that suit, he abandoned his rights under the mortgage, and obtained a simple money decree, on the 25th of March 1901. This decree he assigned to the present appellant, who applied on the 22nd of November 1902, for attachment and sale of the property, which had been mortgaged to his assignor. The property was attached, and a proclamation of sale issued under section 287 of the Code of Civil Procedure. On the 18th of April 1903, the judgment-debtor asked for postponement of the sale, in order that he might raise the amount of the decree. This application was refused. On the 20th of July 1903, the property was sold and purchased by the present appellant. On the 19th of August 1903, the respondent, judgment-debtor applied, under section 311 of the Code of Civil Procedure, to have the sale set aside. On the 12th of September 1903, this application was rejected, and on the 22nd of that month, the sale was confirmed. It appears from the record that a sale certificate was granted to the appellant who is now in possession. On the 6th of June 1906, nearly three years after the sale, the judgment-debtor applied to the court to set aside the sale on the ground of its having been held in contravention of the provisions of section 99 of the Transfer of Property Act. The court of first instance disallowed this application, on the ground that it was too late. On appeal by the judgment-debtor, the lower appellate court reversed the decision of the Munsif, and remanded the case to the court of first instance, under section 562 of the Code of Civil Procedure for decision on the merits. We may remark here that we see no reason whatever why the court below should have sent back the case, as by its decision the only question between the parties had been determined. The appeal here has been very ably argued by the learned gentlemen, who appear for the parties. They have cited a large number of authorities. It has been held by this Court, in the case of Madho Prasad Singh v. Baijnath(1), that even though the mortgagee disclaims all interests in his mortgage, and asks for and obtains a simple money decree, he is precluded by section 99 of the Transfer of Property Act, from bringing that property to sale in execution of the simple money decree. Having regard to that ruling, it must be held, therefore, that the court was not justified in ordering the sale of the property, but the fact remains that it did order the property to be sold, that the sale took place and was confirmed, and that a certificate was granted to the auction purchaser, which by operation of section 316 of the Code of Civil Procedure, so far as the parties to the suit and the persons claiming through or under them, vests in the purchaser the title to the property sold. What we have to decide is whether the order for sale having been passed to the knowledge of the judgment-debtor, and having been allowed by him to become final, he can now at this late stage have the sale set aside and the purchaser divested of his title, on the ground that the court ought not to have ordered the property to be sold. In our opinion the decision of the court of first instance on this question is right. In the case of Madan Makund Lal v. Jamna Kaulapuri(2) the learned Judges remark in regard to a somewhat similar case, “the plaintiff relied on the provisions of section 99 of the Transfer of Property Act. No doubt the sale was held in violation of the provisions of that section, but it was the duty of the judgment-debtors, whom the plaintiff now represents, to object to the sale or to the confirmation of the sale before the sale was confirmed. After the sale had been confirmed, as between the judgment-debtors and the auction purchasers, the title of the latter has become complete and it is no longer open to the plaintiff, who stands in the shoes of the judgment-debtors, to question the title of the defendant, on the ground that the sale at which they purchased was not authorised by law.” It is true that, that was a case of a suit while this was an application under section 244 of the Code of Civil Procedure, but we do not think that this circumstance affects the principle laid down in the passage just cited. The decision in Raj Kishore Dey Sarkar v. Dina Nath Chander(3), is also in favour of the appellant. In the case of Thaleri Pathumma v. Thandora Mammad(4), it was held by Sheppard and Benson, JJ., that when an order for sale of a mortgaged property, in execution of a money decree of the mortgagee, was obtained after notice to the mortgagor and the property was sold in pursuance of such order, the mortgagor cannot go behind the order and seek to set aside the sale on the ground that it ought not to have been passed by reason of section 99 of the Transfer of Property Act. In the case of Durga Charan Mandal v. Kali Prasanno Sarkar(5), a judgment-debtor, whose occupancy holding had been sold in execution of a decree for rent, objected to the application made by the auction purchaser after the confirmation of sale for delivery of possession on the ground that the sale was illegal. The learned Judges, who decided that case, Ghose and Banerji, JJ., observe at page 732 of the judgment, “An order for sale was made and in furtherance of that order, the property was sold whatever may be the effect of that sale. If the judgment-debtors were parties to that order, or were aware of it, and did not appeal against it, they are now precluded from questioning the propriety of that order and consequently of the sale that has taken place under that order”. The decision, by one of us, in Umed v. Jasrao(6), is also in favour of the appellant. In the case Sonu Singh v. Behari Singh(7), the learned Judges say, “As regards the mortgagor raising no objection before the sale, it must be observed that no duty was imposed upon him to do so, it being the decree-holder alone, who was responsible for the particulars to be entered in the sale proclamation,” It appears that in that case, the application to set aside the sale was made before confirmation, though this circumstance is not referred to in the judgment. The observation just cited is opposed to the authorities to which we have referred above and, with all deference to the learned Judges, we are unable to accept the view expressed by them. We entirely disagree with the view expressed by the learned Additional Judge in this case that the respondent could not object until the sale had actually taken place. The learned Additional Judge is also wrong in saying that no specification of the property was given in the proclamation for sale. That document sufficiently defines the property which the decree-holder wished to sell and if there was any irregularity in publishing the sale that was a matter to be dealt with under section 311 of the Code of Civil Procedure. Following the authorities cited in the earlier part of this judgment, we are of opinion that this appeal must succeed. We set aside the order of the Court below and restore that of the Court of first instance. The appellant will have his costs here and in the lower appellate court.

S.C.CAppeal decreed.

2. [See also Ashutosh Sikdar v. Behari Lal Kirtania, I.L.R, 35 Cal., 61.—Ed].