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Madras High Court
Thaleri Pathumma vs Thandora Muhammad on 21 November, 1899
Equivalent citations: (1900) 10 MLJ 110
Author: Shephard


JUDGMENT

Shephard, J.

1. The ground urged by the judgment-debtor for the cancellation of the sale is that the decreeholder being the mortgagee was not entitled to bring the mortgaged property to sale in execution of a decree for’ money. This objection founded on Section 99 of the Transfer of Property Act, stands outside the scope of the Sections 311 and 313 of the Code of Civil Procedure, and the question whether under Section 312 of the Code the sale should be confirmed does not arise.

2. The real question in my opinion is whether the order for sale was an order to which the judgment-debtor was a party, in other words, whether it was made after notice given to her.

3. If the judgment-debtor was a party to the order, she is bound by it and is now precluded from saying that it ought not to have been passed. (See Durga Gharan Mandal v. Kali Prasanna Sarhar (1899) I.L.R. 26 C. 727. The District Judge finds that the judgment-debtor’s assertion that she did not know of the intention to sell is not worthy of belief. The allegation made in the original petition is by no means satisfactory, and since there must have been an attachment before sale, it is difficult to see how it can be true. I do not think we ought to give a further opportunity of proving a case which in effect two courts have found not to be proved.

4. On the ground that the judgment-debtor is bound by the order for sale, I would dismiss this appeal with costs.

Benson, J.

5. I concur.


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