Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Mohun Lal Kundu vs Nanibala Dabee And Ors. on 30 March, 1928
Equivalent citations: AIR 1929 Cal 207
Author: Pearson


Pearson, J.

1. The applicant is the purchaser of certain property at a Registrar’s sale, and seeks to have the sale set aside and the deposit refunded.

2. The property in question is No. 48/5, Boloram Dey Street. This was purchased in September 1912 in the name of one Nanibala Dabi, the wife of Mani Haldar. On 22nd May 1922 Mani Haldar and Nanibala borrowed moneys from plaintiff on mortgage of the property. On 10th June 1923 Mani borrowed certain money from one Durlava Sett upon a promissory note. This debt was assigned by Durlava Sett to one Satya Srimani who obtained a decree against Mani Haldar on 28th August 1924 in suit No. 2106 of 1924. On 8th September 1924 Satya Srimani in execution obtained an order for attachment of this property, and on 11th September 1924 the Sheriff attached the property. On 8th Nov. 1924 Nanibala instituted claim proceedings.

3. On 16th November 1925 the plaintiff filed a suit on the mortgage.

4. On 12th January 1926 Nanibala’s claim was dismissed. The preliminary decree in the mortgage suit was on 22nd March 1926 and the final decree on 27th July 1927. The property was sold to the applicant on 18th February 1928 at the Registrar’s sale for Rs. 16,600.

5. After the purchase an abstract of title was submitted, and requisitions on title were sent to plaintiff’s attorney, when the claim proceedings and attachment came to light. It appeared that the attachment was prior to the institution of the mortgage suit but the plaintiff in the mortgage suit had no knowledge of it and the attaching creditor was not made a party, although under Section 91. T.P. Act, he is entitled to redeem, and under Order 34, Rule 1 all persons having an interest in the right of redemption must be joined as parties. Consequently it is said that the title is bad and the purchaser entitled to reject it, because the attaching creditor can at any time come in arid redeem. To this it is said that the only reason for setting aside a sale under Order 21, Rule 91 of the Code is that the judgment-debtor had no saleable interest in the property, and that Order 34, Rule 1 is subject to the other provisions of the Civil Procedure Code including those that a suit is not to be dismissed because of a nonjoinder of parties : see Har Chandra v. Mahmed A.I.R. 1021 Cal. 554. To which is added the argument that he is a bona fide purchaser and cannot be disturbed, so that he has suffered no prejudice: Rewa Mathon v. Ram Kishen [1887] 14 Cal. 18.

6. The sale, however, was held not under the Civil Procedure Code but under Ch, 27 of the Rules and the conditions of sale framed thereunder. These are the conditions under which the purchase was made and the purchaser is entitled to refuse if he is not given a clear title. If there is an attachment subsisting from before suit giving the creditor a, right of redemption, which fact is only disclosed after purchase, I think the purchaser is entitled to reject the title and have the sale set aside and his deposit returned. I make the order in terms of the summons.

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