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Calcutta High Court
Lakshmi Bibi Kujrani vs Atal Bihary Haldar on 24 January, 1913
Equivalent citations: (1913) ILR 40 Cal 534
Author: C A Teunon
Bench: Chitty, Teunon


Chitty and Teunon, JJ.

1. This is an appeal from an order of the District Judge confirming that of the Subordinate Judge of Manbhum, declining to set aside a sale. It appears that a mortgage was executed by the judgment-debtor on 1st January, 1907, in favour of the present decree-holder. On that mortgage, a preliminary decree was passed on 15th June, 1909, and the final decree for sale was passed on 26th November, 1910. In the interval between the two decrees the pro visions of the Chota Nagpur Tenancy Act (Beng. VI of 1908) were extended to the district of Manbhum, and from that time they govern the property, in question. The decree-holder asked for sale and the judgment-debtor objected. His objection was disposed of by the first Court on 15th June, 1911, and by the Appellate Court on 22nd December, 1911. It has been brought to our notice by the learned pleader for the respondent that the sale actually took place on the 22nd July, 1911, while the appeal in the lower Court was pending, and that it was confirmed on 2nd May, 1912, while the appeal to this Court was pending. The purchaser in this case was the decree-holder.

2. The provisions of Section 47 of the Chota Nagpur Tenancy Act put the matter beyond doubt. That section provides, subject to the three provisos which do not a(sic)ect the present case, that no decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, nor shall any such right be sold in execution of any decree or order. The final decree which was passed on the extension of the Act ought not to have been passed; but, putting that aside, it is clear that the’ second portion of the section applies to this case, and prevents any such right being sold in execution of any decree or order.

3. For the respondent it has been argued that, the sale having taken place and been confirmed, it cannot now be questioned. But, having regard to the fact that the decree-holder Is the purchaser and that the rights of third parties are in no way affected, it is clear that the Court, before which the appeal was pending ever since the objection of the judgment-debtor had been first made, could go into the question. The sale was in direct contravention of the provisions of Section 47 of the Chota Nagpur Tenancy Act.

4. Secondly, it has been argued that the mortgagor is in some way estopped from saying that the property is not saleable. He cannot be estopped from bringing to the notice of the Court what the Court must be taken to know of itself, that there is a distinct provision of the law which prevents the sale of the property.

5. The appeal must be allowed. The orders of the lower Courts are set aside, with all the proceedings which have taken place in consequence of those orders. The appellant must have his costs in all the three Courts.

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