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Behari Bharthi vs Bhagwan Gir And Ors.

High Court Of Judicature at Allahabad|16 December, 1908


1. It appears that the decree-holders held a mortgage-decree as well as a simple money-decree against the same judgment-debtors. An application was made for the attachment and sale of the mortgaged property in execution of the money-decree. The property was attached, but no sale took place. The decree-holders then applied to sell the property in execution of the mortgage-decree, which was a decree absolute for sale of the mortgaged property. While these proceedings were pending and before the sale was held, the Court was asked to sell the property for the realization of the amounts of both the decrees. The property was then sold and was purchased by the appellant who was not a party to either of the decrees. An application was then made by the judgment-debtors to set aside the sale. The Court below was of opinion that the sale was null and void on account of the order for sale to realise the amount of both the decrees. The Court below seems to have been of opinion that the provisions of Section 99, Transfer of Property Act, were contravened and refused to confirm the sale without deciding the other grounds of objection put forward by the judgment-debtors. Hence the present appeal. It seems to us that the Court below did not realise that there had been a decree absolute for the sale of mortgaged property. Section 99 of the Transfer of Property Act is as follows:"Where a mortgagee in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale otherwise than by instituting a suit under Section 67 and he may institute such suit notwithstanding anything contained in the Code of Civil Procedure, Section 43." In the present case the decree-holder had instituted a suit under Section 67. In our opinion there was nothing irregular in selling the property for the amounts of the two decrees. Mr. Sundar Lal who appears for the respondent has been unable to cite any authority for the proposition that such sale is irregular. We allow this appeal, set aside the order of the Court below, and remand the case under the provisions of Section 562, Code of Civil Procedure, for determination of the remaining objections. The appellant will have his costs of this appeal, which will include fees on the higher scale. Other costs will be dealt with by the Court hearing the appeal.
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Behari Bharthi vs Bhagwan Gir And Ors.


High Court Of Judicature at Allahabad

16 December, 1908
  • Richards
  • Griffin