{"id":244945,"date":"1964-10-09T00:00:00","date_gmt":"1964-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-laxmi-devi-vs-sethani-mukand-kanwar-two-others-on-9-october-1964"},"modified":"2016-09-16T08:30:10","modified_gmt":"2016-09-16T03:00:10","slug":"smt-laxmi-devi-vs-sethani-mukand-kanwar-two-others-on-9-october-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-laxmi-devi-vs-sethani-mukand-kanwar-two-others-on-9-october-1964","title":{"rendered":"Smt. Laxmi Devi vs Sethani Mukand Kanwar & Two Others on 9 October, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Laxmi Devi vs Sethani Mukand Kanwar & Two Others on 9 October, 1964<\/div>\n
Equivalent citations: 1965 AIR 834, \t\t 1965 SCR (1) 726<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B. (Cj)<\/div>\n
           PETITIONER:\nSMT.  LAXMI DEVI\n\n\tVs.\n\nRESPONDENT:\nSETHANI MUKAND KANWAR & TWO OTHERS\n\nDATE OF JUDGMENT:\n09\/10\/1964\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nMUDHOLKAR, J.R.\n\nCITATION:\n 1965 AIR  834\t\t  1965 SCR  (1) 726\n CITATOR INFO :\n R\t    1971 SC1201\t (4)\n F\t    1976 SC 737\t (14)\n\n\nACT:\nTransfer  of Property Act (4 of 1882), ss. 2(d), 5 and\t100-\nAuction sale in execution of decree-If transfer of property-\nCharge-If enforceable against auction purchaser.\nCode  of  Civil\t Procedure (Act 5 of 1908), 0.\t21,  r.\t 90-\nSubstantial injury-What is-Application to set aside  auction\nsale-Averment regarding substantial injury-Necessity for.\n\n\n\nHEADNOTE:\nThe  2nd respondent obtained a money decree against the\t 3rd\nrespondent and in execution of that decree brought the\tsuit\nproperty  to sale and the appellant purchased it.  Prior  to\nthe sale, however, there was a decree, in favour of the\t 1st\nrespondent,  for  arrears of maintenance, and  a  charge  in\nfavour\tof the 1st respondent was declared over the  proper-\nties  of  the 3rd respondent, including the  suit  property.\nThe  1st respondent therefore filed an application under  0.\n21, r. 90 of the Code of Civil Procedure, 1908, to set aside\nthe  sale.   The Executing Court dismissed  the\t application\nholding that she had failed to show any substantial  injury.\nThe order was set aside by the High Court on appeal.  In the\nappeal\tto  the\t Supreme Court, it was\tcontended  that\t the\napplication  should  be\t dismissed as :\t (i)  there  was  no\nallegation  of\tsubstantial injury in the  application,\t and\n(ii)  in  fact\tthe  1st respondent  had  not  suffered\t any\nsubstantial injury.\nHELD : The appeal should be allowed.\nWhile  s.  5 of the Transfer of Property Act,  1882  defines\n\"transfer of property\" only as a transfer effected by act of\nparties inter vivos, s. 2(d) provides that save as  provided\nby Chapter IV of the Act, the provisions of the Act are\t not\ndeemed\tto affect transfers in execution of decrees.   Since\nthe  positive  provision  in s. 2(d)  prevails\tover  s.  5,\nChapter IV and s. 100 in that Chapter would apply to auction\nsales in execution of decrees.\tSection 100 provides that  a\ncharge\tshall  not be enforced against any property  in\t the\nhands of a person to whom the property has been\t transferred\nfor  consideration  and without notice of the  charge.\t The\nresult\twould  be  that as a  consequence  of  the  material\nirregularity in not referring to the charge in favour of the\n1st  respondent in the proclamation of sale under 0. 21,  r.\n66  of\tthe Civil Procedure Code, 1908, the  1st  respondent\nwould  not  be able to enforce the charge against  the\tsuit\nproperty  purchased by the appellant in auction sale.\tWhen\ninjury is thus implicit in the irregularity it would be\t too\ntechnical  to  dismiss the application on  the\tground\tthat\nthere  was  no\texpress averment of  substantial  injury  as\nrequired by the proviso to 0. 21 r. 90(1) of the Code.\t But\nthe  application  should however be dismissed,\tbecause\t the\ninjury\tsuffered  by the 1st respondent was not\t in  fact  a\nsubstantial injury. There were other propertiesto     the\ncharge\tand  they  would  be  available\t to  meet  all\t her\nlegitimateby   way of maintenance. [731 C-D, G; 732  B;\n733 E-G; 734 E-F; 735E-F, H]\nNawal  Kishore v. The Municipal Board, Agra,  I.L.R.  [1943]\nAU.  453 (F.B.), R. L. Nanadkeolvar v. Sultan Jahan,  I.L.R.\n31 Pat. 722 and\n 727\nMunna  Singh  Allah  Singh v. Wasti Ram\t Saraf\tand  others,\nA.I.R. 1960 Punj. 296, approved.\nArumilli  Surayya v. Pinisetti Venkataramanamma and  others,\nA.I.R. 1940 Mad. 701 and Creet v. Ganga Ram Gool Rai, I.L.R.\n[1937] 1 Cal. 203, overruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 247 of 1962.
\nAppeal\tfrom the judgment and order dated July 29, 1960,  of
\nthe Rajasthan High Court in D. B. Civil Misc.  Appeal No. 54
\nof 1957.\n<\/p>\n
Bishan\tNarain, Amar Chand Inani and B. P.  Maheshwari,\t for
\nthe appellant.\n<\/p>\n
B. D. Sharma, for respondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nGajendragadkar C.J. This appeal arises out of an application
\nmade  by respondent No. 1, Smt.\t Mukand Kanwar,\t challenging
\nthe  validity of an auction sale held on the 14th May,\t1954
\nin execution of a money decree passed in favour of Ratan Lal
\nDani,\tSecretary,  Hindu  Charitable  Aushdhalaya,   Ajmer,
\nrespondent  No. 2, and against Umrao Mal, respondent No.  3.
\nThe  property sold at the auction sale is “old Daikhana”  at
\nAjmer.\tOn the 24th June, 1950, Umrao Mal who was the  owner
\nof  the property, mortgaged it to the appellant Laxmi  Devi.
\nLater,\trespondent  No. 2 obtained a  money  decree  against
\nrespondent  No.\t 3 for a large amount, and in  execution  of
\nthis  money  decree he brought the property in\tquestion  to
\nsale.\tAuction sale was accordingly held on the  14th\tMay,
\n1954,  and the appellant purchased the property\t subject  to
\nthe  preexisting  mortgage in her favour.   The\t amount\t due
\nunder the mortgage was Rs. 33,264 and as  auction-purchaser,
\nthe  appellant\tpaid  Rs. 2,800 whereby\t she  purchased\t the
\nequity\tof  redemption\tvesting in  respondent\tNo.  3,\t the
\njudgment-debtor.   It is the validity of this sale  that  is
\nchallenged in the present proceedings.\n<\/p>\n
Long before the mortgage was executed, respondent No. 3\t had
\nexecuted in favour of his mother, respondent No. 1, a  docu-
\nment whereby her maintenance was guaranteed.  This  document
\nhad  created  charge over certain  properties  belonging  to
\nrespondent  No.\t 3.  On\t the  strength\tof  this   document,
\nrespondent No. 1 sued- respondent No. 3 (civil suit No.\t 233
\nof 1952).  In this suit, she claimed arrears of\t maintenance
\nand asked for a declaration that the properties specified in
\nthe plaint, which were the
\n728<\/span>
\nsame  as  the properties covered by the\t previous  agreement
\nbetween\t the  parties,\twere subject to\t a  charge  for\t her
\nmaintenance.  The trial Court gave her a decree for  arrears
\nof  maintenance, but declined to make the declaration as  to
\ncharge\tclaimed by her.\t This decree, was pronounced on\t the
\n31st  July,  1952.  Against this decree,  respondent  No.  1
\npreferred  An  appeal  (No.  80 of  1952)  to  the  Judicial
\nCommissioner,  Ajmer.  Her appeal succeeded and\t the  charge
\nover  the  properties  was declared  in\t her  favour.\tThis
\ndecision was pronounced on the 10th February, 1954.
\nAfter  the auction sale was held on the 14th May,  1954,  it
\nwas challenged by two separate applications, one was made by
\nrespondent  No.\t 3, the judgment-debtor, on the\t 28th  June,
\n1954,  and the other by respondent No. 1 on the\t same  date.
\nBoth  these applications were made under 0. 21 r. 90 of\t the
\nCode of Civil Procedure.  The application made by respondent
\nNo.  3\twas  dismissed on the 30th April,  1955,  while\t the
\napplication  made by respondent No. 1 went to a trial.\t The
\nExecuting  Court  which heard this application\ttried  three
\nissues.\t  The  first  issue was whether the  sale  had\tbeen
\nvitiated  by  any irregularity as required by 0. 21  r.\t 90.
\nThe  second was whether respondent No. 1 was a person  whose
\ninterests  had been affected by the impugned sale;  and\t the
\nthird was whether the irregularity alleged by respondent No.
\n1 had caused substantial loss to her.  All these issues were
\ndecided\t in favour of respondent No. 1. In the\tresult,\t the
\nimpugned sale was set aside on the 4th May, 1955.
\nThe  appellant challenged the correctness of  this  decision
\nbefore\tthe Judicial Commissioner, Ajmer.  It was  urged  on
\nbehalf\tof  the\t appellant  that  the  application  made  by
\nrespondent  No. 1 did not satisfy the requirements of 0.  21
\nr.  90 of the Code inasmuch as appropriate  allegations\t had
\nnot  been made in the application showing  that\t substantial
\ninjury\thad been suffered by respondent No. 1 by  reason  of
\nthe irregularities which, according to her, had vitiated the
\nsaid  sale.   This  plea  was  rejected\t by  -the   Judicial
\nCommissioner.\tIt was then urged that respondent No. 1\t was
\nnot  competent to make the said application.   The  Judicial
\nCommissioner  did  not\taccept even  this  plea.   The\tlast
\nargument which was pressed before the Judicial\tCommissioner
\nwas  that the finding recorded by the Executing\t Court\tthat
\nrespondent  No.\t 1 had suffered substantial injury  was\t not
\njustified,   and  that\tin  fact,  the\tappellant   had\t  no
\nopportunity to lead her evidence on that issue, because\t all
\nthe  three issues on which the Executing Court had made\t its
\nfindings  had been framed by it at a very late stage of\t the
\nproceedings.\n<\/p>\n
 729<\/span><\/p>\n
This  plea was upheld by the Judicial Commissioner, and\t so,
\nhe  set\t aside the finding of the Executing  Court  on\tthat
\nissue and sent the case back for disposal in accordance with
\nlaw,  with  a  direction that the issue\t as  to\t substantial
\ninjury should be tried afresh.\tThis order was pronounced on
\nthe 26th August, 1955.\n<\/p>\n
After remand, the Executing Court considered the issue as to
\nsubstantial injury and held that respondent No. 1 had failed
\nto  show  any  substantial  injury.  As\t a  result  of\tthis
\nfinding,  it ordered that her application under 0. 21 r.  90
\nshould be dismissed, and the sale should be confirmed.\tThis
\norder was pronounced on the 27th April, 1957.
\nAggrieved  by  this  order, respondent No.  1  preferred  an
\nappeal, and since the High, Court of Judicature at Rajasthan
\nhad  then come into existence, her appeal was heard  by\t the
\nsaid High Court.  The High Court has held that the Executing
\nCourt  was  in\terror  in  coming  to  the  conclusion\tthat
\nrespondent  No.\t 1 had not proved substantial  injury.\t The
\ncontentions  raised  by\t the appellant\tin  support  of\t the
\nultimate  decision  reached  by\t the  Executing\t Court\twere
\nrejected by the High Court, and as a result, the application
\nmade  by respondent No. 1 was allowed and the impugned\tsale
\nset aside.  This appellate order was pronounced on the\t29th
\nJuly, 1960. It\tis against this order that the\tappellant
\nhas come to this Court\t with  a certificate granted by\t the
\nsaid High Court.  Thus, it willbe noticed that the  sale
\nwhich took place on the 14h May, 1954\tstill remains to  be
\nconfirmed.\n<\/p>\n
On  behalf of the appellant, Mr. Bhasin Narain has  conceded
\nthat as a person holding a charge over the property sold  at
\nthe auction sale, respondent No. 1 can rely on s. 100 of the
\nTransfer  of Property Act and as such was competent to\tmake
\nthe  application  under\t 0. 21 r. 90.  Order  21,  r.  90(1)
\nprovides, inter alia. that where any immovable property\t has
\nbeen  sold  in\texecution  of a\t decree,  any  person  whose
\ninterests  are affected by the sale, may apply to the  Court
\nto  set\t aside\tthe  sale  on  the  ground  of\ta   material
\nirregularity or fraud in publishing or conducting it.  There
\nis a proviso to this rule which is relevant for our purpose.
\nThis  proviso lays down that no sale shall be set  aside  on
\nthe  ground of irregularity or fraud unless upon  the  facts
\nproved,\t the  Court  is satisfied  that\t the  applicant\t has
\nsustained substantial injury by reason of such\tirregularity
\nor  fraud.   While  conceding  that  respondent\t No.  1\t was
\nentitled to make an application as a person whose  interests
\nwere affected by the impugned sale, Mr. Bishan Narain argues
\nthat if the application made by her is properly
\n730<\/span>
\nconstrued, it would appear that the material allegations  of
\nfact  which must be made by the applicant invoking 0. 21  r.
\n90(1),\thave  not been made; and so,  the  said\t application
\nshould\tbe. dismissed on that ground alone.  On the  merits,
\nhe contends that there is no evidence on which a finding can
\nbe made in favour of respondent No. 1 that she has  suffered
\nsubstantial  injury by reason of any irregularity  committed
\nin the conduct of the sale.\n<\/p>\n
The  application  made\tby  respondent No.  1  is  no  doubt
\nsomewhat  defective, because it does not, in  terms,  allege
\nthat  as  a  result  of\t the  irregularity  alleged  in\t the
\napplication,  respondent  No.  1  has  suffered\t substantial
\ninjury.\t  The  application avers that  before  the  impugned
\nauction\t sale was held, a proclamation had been issued,\t but
\nthe said proclamation did not refer to the charge in  favour
\nof  respondent\tNo. 1 which had already been  recognised  by
\ndecree in a suit between respondent No. 1 and respondent No.
\n3 and that naturally attracts the provisions of 0. 21 r.  66
\nof  the\t Code.\t Order 21 r. 66(2)  (e)\t requires  that\t the
\nproclamation  shall be drawn up and shall specify as  fairly
\nand  accurately\t as possible any incumbrance  to  which\t the
\nproperty  sought  to  be sold is  liable.   The\t failure  to
\nmention\t the  charge in favour of respondent  No.  1  would,
\ntherefore, constitute an irregularity within the meaning of\n<\/p>\n
0. 21 r. 90(1).\t This position is also not in dispute.
\nThe  contention,  however, is that the application  made  by
\nrespondent No. 1 does not show what injury she has  suffered
\nas  a  result  of the said irregularity,  and  that,  it  is
\nargued,\t constitutes a serious infirmity in the\t application
\nwhich  would entail its dismissal.  On the other  hand,\t Mr.
\nSharma for respondent No. 1 has relied on the fact that\t the
\nauction\t sale  would virtually wipe out\t or  extinguish\t the
\nrights\twhich have accrued to respondent No. 1 by virtue  of
\nthe  charge declared by a decree in her favour, and  he\t has
\nsuggested  that the legal consequence flowing from the\tfact
\nthat  the auction sale has been held without notice  of\t the
\ncharge\tin  favour of respondent No.  1\t itself\t constitutes
\nsubstantial  injury  to the interests of respondent  No.  1.
\nThis  argument is based on the latter part of S. 100 of\t the
\nTransfer of Property Act.  We will presently refer, to\tthis
\nprovision.  At this stage, it is enough to state that if Mr.
\nSharma\tis  right  in contending that  an  auction  sale  of
\nimmovable  property  which  has\t followed  the\tproclamation
\nissued\tunder 0. 21 r. 66 in which no reference to a  charge
\nis made, materially affects the rights of the charge-holder,
\nsome  injury would automatically flow from the\tirregularity
\nalleged\t in the application filed by respondent No.  1,\t and
\nso, it would not be
\n731<\/span>
\nappropriate  to\t hold that the said  application  should  be
\ndismissed on the ground that no substantial injury has\tbeen
\nalleged as required by the proviso to 0. 21 r. 90(1).
\nIt is true that before an application made under 0. 21 r..90
\ncan  succeed,  the applicant has to show that  the  impugned
\nsale  was, vitiated by a material irregularity or  fraud  in
\npublishing or conducting it; and as required by the proviso,
\nit is also necessary that he should show that in consequence
\nof   the  said\tirregularity  or  fraud\t he  had   sustained
\nsubstantial  injury.  Therefore, Mr. Bishan Narain is  right
\nwhen he contends that the application made by respondent No.
\n1  ought to contain an allegation in regard to the  material
\nirregularity  as  well as an  allegation-as  to\t substantial
\ninjury.\t  But, in our opinion, in a case like  the  present,
\nwhere  substantial injury is alleged to be implicit  in\t the
\nmaterial  irregularity set out in the application, it  would
\nbe,  too  technical to hold that the application  should  be
\ndismissed  on  the preliminary ground that  no\tspecific  or
\nexpress\t averment  has been made as  to\t substantial  injury
\nsuffered by respondent No. 1.\n<\/p>\n
Now,  in dealing with the question as to whether  respondent
\nNo.  1\tcan be said to have alleged that  she  has  suffered
\nsubstantial  injury  by\t reason of the\tfact  that  she\t has
\nalleged\t a material irregularity which, in law,\t necessarily
\nleads to substantial injury, it is necessary to consider the
\nquestion  as  to whether the latter part of s.\t100  of\t the
\nTransfer  of  Property\tAct applies  to\t the  present  case.
\nSection\t 100  deals  with charges, and it  provides  when  a
\nperson\tcan  be said to have a charge on the  property;\t and
\nadds  that all the provisions hereinbefore  contained  which
\napply to a simple mortgage shall, so far as may be, apply to
\nsuch charge.  It is common ground that respondent No. 1\t can
\nclaim to be charge-holder as defined by s. 100.
\nThat  takes  us\t to the latter part of s.  100.\t  This\tpart
\nprovides,  inter  alia,\t that save  as\totherwise  expressly
\nprovided  by any law for the time being in force, no  charge
\nshall  be  enforced against any property in the hands  of  a
\nperson\tto  whom  such property\t has  been  transferred\t for
\nconsideration and without notice of the charge.\t Mr.  Sharma
\ncontends that the auction-purchaser holds the property as  a
\nresult of the auction sale, and in that sense, the  property
\nmust be held to have been transferred to him.  He adds\tthat
\nthe charge was not notified in the proclamation, and so, the
\nauction purchaser has no notice of the charge, and the\tsale
\nis undoubtedly supported by consideration.  In other  words,
\nthe case of the appellant directly falls under this part  of
\ns. 100, and so, respondent
\n732<\/span>
\nNo.  1 would not be able to enforce her charge\tagainst\t the
\nproperty  purchased  by the appellant at the  auction  sale.
\nThat, according to him, constitutes substantial injury.
\nThis argument raises the question as to whether the relevant
\nprovision  of s. 100 takes in the cases of auction  purchase
\nat  all.   For answering this question, it is  necessary  to
\nrefer  to two other provisions of the Transfer\tof  Property
\nAct.   Section 2(d) provides that nothing  herein  contained
\nshall  be  deemed to affect, save as provided by S.  57\t and
\nChapter IV of this Act, any transfer by operation of law  or
\nby,  or\t in execution of, a decree or order of\ta  Court  of
\ncompetent  jurisdiction.   The effect of this  provision  is
\nthat the provisions of the Transfer of Property Act will not
\napply  to  any\ttransfer by operation of law or\t by,  or  in
\nexecution  of,\ta decree or order of a\tCourt  of  competent
\njurisdiction.\tThis  provision is clear and  emphatic.\t  It
\nsays that nothing in the Transfer of Property Act will apply
\nto  the transfers just indicated; and that  would  naturally
\ntake in the whole of S. 100.  But there is an exception made
\nto  this provision by S. 2(d) itself by the  saving  clause,
\nand  this  exception  covers cases provided  by\t s.  57\t and
\nChapter\t IV.  Chapter IV deals with mortgages  of  immovable
\nproperty  and  charges.. and includes sections\t58  to\t104.
\nSection\t 100, therefore, falls within Chapter IV;  and,\t the
\nresult\tof the saving clause is that s. 100 would  apply  to
\ntransfers  by  operation of law.  There\t is,  therefore,  no
\ndoubt  that if the question as to the applicability  of\t the
\nlatter\tpart of S. 100 to cases of auction sales had  to  be
\ndetermined  only by reference to S. 2(d), the  answer  would
\nclearly be in favour of such applicability.
\nIt  is\ttrue that when S. 2(d) was originally  enacted,\t the
\nlatter\tpart of S. 100 was not included in the\tTransfer  of
\nProperty  Act; this was added in 1929 by S. 50 of Act 20  of
\n1929.\tThat,  however,\t would make  no\t difference  to\t the
\ninterpretation of the relevant clause in s. 2(d).  The\tfact
\nthat  the  saving  clause  included in s.  2(d)\t as  it\t was
\noriginally enacted, could not have taken in the latter\tpart
\nof s. 100, makes no difference to its construction,  because
\nas  soon  as the latter provision was added to\tS.  100,  it
\nbecame a part of the provisions contained in Chapter IV\t and
\nautomatically  fell within the terms of the  saving  clause.
\nIf the legislature had intended that the provision added  to
\ns. 100 in 1929 should not fall within the saving clause,  an
\nappropriate  provision would have been made by\tamending  S.
\n2(d)  in that behalf.  Therefore, s. 2(d) by itself  clearly
\nsupports  Mr. Sharma’s contention that the appellant who  is
\nan auction-purchaser would be able to claim
\n 733<\/span>
\nimmunity against the enforcement of the charge in favour  of
\nrespondent  No. 1 by virtue of the provisions  contained  in
\nthe latter part of s. 100.\n<\/p>\n
This  position, however, has become somewhat complicated  by
\nreason\tof the provisions contained in s. 5 of the  Transfer
\nof  Property Act.  Section 5 provides, inter aria,  that  in
\nthe  following sections “transfer of property” means an\t act
\nby which a living person conveys property, in present or  in
\nfuture,\t to  one  or more other living\tpersons.   In  other
\nwords, in terms, the definition of the expression  “transfer
\nof property” as used in all the sections of the Transfer  of
\nProperty  Act is intended to take in transfers\teffected  by
\nacts of parties inter vivos, and an auction-sale clearly  is
\nnot  such  an act.  Section 5 would,  therefore,  appear  to
\nexclude auction sales from the purview of s. 100 altogether.
\nThis result would appear to be consistent with the provision
\nin  the preamble of the Act which says that the Transfer  of
\nProperty Act was enacted because it was thought expedient to
\ndefine\tand amend certain parts of the law relating  to\t the
\ntransfer  of  property\tby  act of  parties.   That  is\t the
\nposition which emerges from the reading of s. 5 coupled with
\nthe  preamble; and that naturally raises the question as  to
\nhow to reconcile these two inconsistent positions.
\nIn our opinion, the positive provision contained in s.\t2(d)
\nmust  prevail over the definition of “transfer of  property”
\nprescribed by s. 5. No doubt, the purpose of the  definition
\nis  to\tindicate  the  class  of  transfers  to\t which\t the
\nprovisions  of the Transfer of Property Act are intended  to
\nbe  applied; but a definition of this kind cannot  over-ride
\nthe  clear and positive direction contained in the  specific
\nwords used by s. 2 (d).\t As we have already seen, the result
\nof the saving clause enacted by s. 2(d) is to emphasise\t the
\nfact  that  the provisions of s. 57 and those  contained  in
\nChapter IV must apply to transfer by operation of law.\tSuch
\na  positive  provision cannot be made to yield to  what\t may
\nappear to be the effect of the, definition prescribed by  s.
\n5, and so, we are inclined to hold that notwithstanding\t the
\ndefinition  prescribed\tby s. 5, the latter part of  s.\t 100
\nmust be deemed to include auction sales.\n<\/p>\n
This  question\thas been considered by our  High  Courts  on
\nseveral\t occasions,  and, on the whole,\t the  majority\tview
\nappears to be in favour of the conclusion which we have just
\nindicated.   In Nawal Kishore v. The Municipal Board,  Agra,
\n(1),  this  question  was referred to a Full  Bench  of\t the
\nAllahabad  High\t Court,\t because  there\t appeared  to  be  a
\nconflict between two previous decisions of
\n(1)I.L.R. [1943] All. 453.\n<\/p>\n
734<\/span><\/p>\n
Division  Benches  of  the said High Court  on\tthis  point.
\nThese  two  decisions  were Rai\t Indra\tNarain\tv.  Muhammed
\nIsmail(1),  and\t Municipal  Board,  Kanpore  v.\t Roop  Chand
\nJain(2).   In the first decision, the Allahabad\t High  Court
\nhad taken the view that auction sales do not fall within the
\npurview\t of the latter part of s. 100, while in\t the  latter
\ncase,  a  contrary view had been accepted.  The\t Full  Bench
\npreferred  that latter view to the former.  Since this\tFull
\nBench  decision was pronounced in the Allahabad High  Court,
\nauction-purchasers have been consistently held to fall under
\nthe  latter  part of S. 100.  It has been held by  the\tFull
\nBench that when the relevant clause in the latter part of S.
\n100  speaks of any property in the hands of person  to\twhom
\nsuch property has been transferred, the concept of  transfer
\nis  wide  enough to include transfers effected\tby  acts  of
\nparties\t as well as transfers effected by operation of\tlaw.
\nThe  same view has been accepted by the Patna High Court  in
\nR.  L.\tNanadkeolvar v. Sultan Jehan(3), and by\t the  Punjab
\nHigh Court in Manna Singh Al1ah Singh v. Wasti Ram Saraf and
\nOthers(1).   The  decision  of\tthe  Madras  High  Court  in
\nArumilli  Surayya v. Pinisetti Venkataramanamma and  Ors.(5)
\nand  the  decision of the Calcutta High Court  in  Creet  v.
\nGanga Ram Gool Raj,(1) which appear to support the  contrary
\nview  do not, in our opinion, correctly represent  the\ttrue
\nlegal position in this matter.\tTherefore, we must deal with
\nthe  present  appeal on the basis that as a  result  of\t the
\nfailure of the proclamation to refer to the charge in favour
\nof  respondent No. 1, she would not be able to\tenforce\t her
\ncharge\tagainst the property purchased by the  appellant  by
\nauction sale; and that means that the impugned sale has been
\nconducted  in a materially irregular manner and as a  conse-
\nquence of the said irregularity, some injury has resulted to
\nrespondent No. 1.\n<\/p>\n
That  raises the question as to whether the said injury\t can
\nbe  said to amount to substantial injury within the  meaning
\nof proviso to 0. 21 r. 90(1); and this inevitably would be a
\nquestion of fact.  The High Court appears to have held\tthat
\nas  soon  as  it  is shown  that  the  charge  would  become
\nunenforceable  against\tthe appellant  auction-purchaser  by
\nvirtue\tof the provisions of S. 100, it follows as a  matter
\nof  law\t that  respondent No.  1  has  suffered\t substantial
\ninjury, and so, the impugned sale must be set aside.  We are
\nnot prepared to accept this view.  We do not think it can be
\nreason-\n<\/p>\n
(1)  I.L.R. [1939] All. 885.\n<\/p>\n
(2)  I.L.R. [1940] All. 669.\n<\/p>\n
(3)  I.L.R. (1952) 31 Pat. 722.\n<\/p>\n
(4)  A.I.R. 1960.  Punj. 296.\n<\/p>\n
(5)  A.I.R. .1940 Mad. 701.\n<\/p>\n
(6)  I.L.R. [1937] 1 Cal. 203.\n<\/p>\n
 735<\/span><\/p>\n
ably  assumed as a matter of law that in every case where  a
\ncharge has become unenforceable against an auction-purchaser
\nby  reason  of\tthe  fact  that it  was\t not  shown  in\t the
\nproclamation preceding the auction sale, it follows that the
\ncharge-holder  has suffered substantial injury.\t Whether  or
\nnot the injury suffered by the charge-holder is substantial,
\nmust   depend  upon  several  relevant\tfacts.\t  How\tmany
\nproperties have been sold at the auction sale; how many\t out
\nof  them were the subject-matter of the charge; what is\t the
\nextent of the claim which the charge-holder can legitimately
\nexpect to enforce against the properties charged, these\t and
\nother  relevant matters must be considered  before  deciding
\nwhether\t or not the injury suffered by the charge-holder  is
\nsubstantial.   It  is  from  this point\t of  view  that\t the
\nmaterial facts in the present case must now be considered.
\nProperties  which are the subject-matter of the\t charge\t are
\nfive in number.\t Out of these properties, it is property No.
\n3  alone  which has been sold at auction sale.\t It  appears
\nthat  properties  Nos.\t1 and 2 have already  ceased  to  be
\navailable to the charge holder, and so, the consideration of
\nthe question as to whether the injury suffered by respondent
\nNo.  1 is substantial, must depend upon the relative  values
\nof  properties\tNos.  4\t and  6.  This\tquestion  has\tbeen
\nconsidered  by the Executing Court when the matter was\tsent
\nback  to  that Court by the Judicial  Commissioner  and\t the
\nExecuting Court has made a definite finding that the  injury
\nsuffered   by  respondent  No.\t1  cannot  be  said  to\t  be
\nsubstantial.  According to it, properties Nos. 4 and 6 which
\nwould  be available to respondent No. 1 would be  enough  to
\nmeet all her legitimate claims against the  judgment-debtor,
\nrespondent  No.\t 3.  The  value of Property  No.  4  is\t Rs.
\n1,18,967  whereas  the\tvalue  of  property  No.  6  is\t Rs.
\n1,25,464.   The Executing Court has taken into\taccount\t the
\namount which respondent No. 1 is entitled to claim by way of
\nmaintenance  from respondent No. 3, has also borne  in\tmind
\nthe fact that respondent No. 1 is an old lady past 70  years
\nof  age and has come to the conclusion that, on\t the  whole,
\nthe  sale of property No. 3 to the auction-purchaser  cannot
\nbe  said to have caused substantial injury to her.   In\t our
\nopinion, it is difficult to differ from this conclusion; and
\nso,  it follows that though respondent No. 1 has been  able,
\nto  show that her charge could not be enforced\tagainst\t the
\nappellant, it is not shown that this circumstance has caused
\nsubstantial  injury to her.  The result, therefore, is\tthat
\nthe requirement of the proviso to 0. 21 r. 90 of the Code is
\nnot satisfied in the present case.\n<\/p>\n
736<\/span><\/p>\n
 We ought to add that pending the appeal before this  Court,
\nrespondent No. 3, Umrao Mal has died leaving behind him\t his
\nmother\trespondent  No. 1 and his widow, and the  estate  of
\nUmrao  Mal  has\t devolved  on  these  two  widows;  and\t so,
\nrespondent  No.\t 1 has now become the owner of part  of\t the
\nproperties  against  which  she would  otherwise  have\tbeen
\nentitled to proceed in execution of tier maintenance decree.
\nThe  result is, the appeal is allowed, the order  passed  by
\nthe
\nHigh  Court  is\t set  aside  and  the  application  made  by
\nrespondent  No.\t 1 under 0. 21 r. 90  is  dismissed.   There
\nwould be no order as to costs throughout.\n<\/p>\n
Appeal allowed.\n<\/p>\n
737<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Laxmi Devi vs Sethani Mukand Kanwar & Two Others on 9 October, 1964 Equivalent citations: 1965 AIR 834, 1965 SCR (1) 726 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. (Cj) PETITIONER: SMT. LAXMI DEVI Vs. RESPONDENT: SETHANI MUKAND KANWAR & TWO OTHERS DATE OF JUDGMENT: 09\/10\/1964 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-244945","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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