Uma Churn Dutt And Ors. vs Basharutulla on 18 July, 1889

Calcutta High Court
Uma Churn Dutt And Ors. vs Basharutulla on 18 July, 1889
Equivalent citations: (1889) ILR 16 Cal 794
Author: W C Petheram
Bench: W C Petheram, Gordon


W. Comer Petheram, C.J.

1. This is a suit which has been brought by the plaintiff against the defendants, claiming various reliefs, and, among other things, the plaintiff claims to set aside the sale of certain property as being fraudulent, and in addition to that, he claims to recover possession of that property from the defendants, and he claims any other relief to which he may be found entitled. The Judge has decreed the suit, and the appeal has been preferred to this Court, really on the ground that such a suit will not lie at all by reason of the provisions of the Code of Civil Procedure.

2. The facts of the case are that the present plaintiff had a decree passed against him for a sum of money due to certain persons, some of whom were his landlords, or at all events his judgment-creditors. He did not pay that money, and his property was attached and was proclaimed for sale by reason of the plaintiff’s failure to pay the sum decreed, and, according to the proclamation, the sales, amongst which the sale of this particular property was one, were advertised to take place on a certain day. Before that day arrived, the present plaintiff arranged with his creditors to pay them off the amount of their decree by instalments, and that the property should be released from attachment and not sold, and upon the faith of that arrangement both the present plaintiff and his three creditors attended at the place of sale at 12 o’clock on the day stated in the proclamation, and found, when they got there, that the sales were all over; and that the sales, instead of commencing at 12 o’clock, had commenced at about 10 o’clock, and concluded before 12 o’clock, the advertised time. Under these circumstances, an application was made by the plaintiff to get that proceeding set aside for irregularity, and that proceeding was disposed of by an arrangement made between the plaintiff and the present defendants that a certain sum of money should be paid by the present plaintiff, being the amount which the purchasers had paid; and that the purchasers should withdraw all claim to the property. The proceeding to set aside the sale accordingly went off upon that arrangement being come to, but afterwards, as the Judge finds, the purchasers, the present defendants, refused to carry out their part of the agreement in this sense, that they said, we decline to give up all claim to this property upon the payment of the purchase-money into Court. Upon this, the arrangement fell through, and the purchasers got possession of the property under their sale certificate, and upon that the plaintiff brings this suit for the purpose of getting back his property, and of having it declared that this sale did not affect his right to possession at all.

3. If what took place was a mere irregularity, then the only proceeding for setting the thing aside was a proceeding under Section 311 of the Code of Civil Procedure, the latter portion of that section providing that no suit shall be brought to set aside a sale for mere irregularities; but if the sale took place under such circumstances that it was not a sale under the Code at all, then it is contended that no property passed under it, and that the judgment-debtor has a right to bring this suit to get back his property, and to have it declared that the purchasers have no right to it at all.

4. The question then is, whether what took place here was an irregularity only, or whether there was no sale within the meaning of the law at all.

5. By Section 287 of the Code, it is provided that, when any property is ordered to he sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. Such proclamation shall state the time and place of sale, and shall specify fairly and accurately certain other things.

6. There is then a provision in the Code that, before a sale takes place, the time and place of sale shall be advertised. It is perfectly true that there is no provision in the Code that the sale shall take place at the time and place advertised, but it is clear that such a provision must be implied, and that consequently no sale can take place under the Code except at the time and place advertised under the Code.

7. As a matter of fact, the sale in this case did not take place at the time advertised. When the time advertised arrived, the property had been sold, and the whole thing was over; and when persons came for the purpose of attending the sale at the time advertised, they found that the property had been sold, and that they were too late.

8. Under these circumstances, it seems to us that there was no sale within the meaning of the Code at all, and that this proclamation of the time and place of sale and the taking place of the sale at the time and place advertised are conditions precedent to its being a sale under the Code at all. Under these circumstances, it appears to us that this property never has been sold under the Code, and consequently the plaintiff is entitled to a declaration that whatever took place when the property was put up for sale has no effect as against him, and that he is entitled to recover this property.

9. A case has been cited, which was decided by Mr. Justice Pigot and Mr. Justice Beverley, of Sharoda Churn Chuckerbutty v. Mahomed Isuf Meah I.L.R. 11 Cal. 376. That case proceeded upon Section 244 of the Code of Civil Procedure, and not upon the sections now under our consideration. It seems to us that that case has no bearing upon the present one, and that the Judge was right in the conclusion at which he arrived, and this appeal must be dismissed with costs.

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