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Firm Tundi Ram-Sheo Shanker Ram ... vs Ghure Lal And Anr.

High Court Of Judicature at Allahabad|24 April, 1939


ORDER Bajpai, J.
1. This is an application in revision by firm Tundi Ram Sheo Shankar Ram, who are the decree-holders of a per. son by the name of Sheo Shanker Lai. The decree was obtained on 13th March 1934 and it was put into execution on 11th August 1937. Some property was attached on 8th September 1937 and on 16th October 1937 it was notified that the sale will take place on 20th December 1937. On 11th December 1937 Ghure Lai, the bro-ther of the judgment-debtor Sheo Shanker Lai, preferred a claim under Order 21, E. 58, Civil P.C., to the attachment, and the Court passed the following order:
Sale shall not be postponed. Only confirmation will await the decision of the objection which I order to be registered. Fix 22-1-38 for hearing of objection.
2. The sale did take place on 20th December 1937 and the claim case was heard on 22nd January 1938 when the Court below passed the following order:
I am satisfied that the disputed house, one shop, to which the objection relates, belongs to objector. Objection is allowed.
3. The contention on behalf of the decree-holder is that the sale having taken place, the objections became incompetent and the Court below could not allow the objections after the auction sale, and reliance is placed on the cases in Kali Charan v. Sarajini Debi (1926) 13 A.I.R. Cal. 468, Gopal Chandra Mukerji v. Notobar Kundu (1912) 16 C.W.N. 1029 and Mt. Puhupdei Kuar v. Ramcharitar Barhi (1924) 11 A.I.R. Pat 76. All these cases are distinguishable, because the Allahabad High Court has made an addition to Sub-clause (2) of Order 21, Rule 58, Civil P.C., and the addition is that the Court may in its discretion make an order postponing the delivery of the property after the sale pending such investigation and that in no case shall the sale become absolute until the claim or objection has been decided. The addition obviously contemplates the decision of a claim after the sale and the leases which say that the investigation cannot be held after the sale are not good law, in view of the addition made by the Allahabad High Court. There is, therefore, no force in this contention of learned Counsel for the applicant.
4. It is also contended that the Court did not consider the fact that the claim was designedly and unnecessarily delayed and if the Court had considered this point no investigation would have been made. It is also said that the judgment of the Court below is very cryptic and does not discuss the evidence produced by the parties and the reasons why the Court has come to the conclusion that the "disputed house, one shop," belongs to the objector. I think there is considerable force in these two objections. I therefore allow this application, sob aside the order of the Court below and send back the case to that Court with directions to re-admit the case on its original number and to dispose of it in view of the observations made by me. The Court will consider the point whether the objection was designedly or unnecessarily delayed, and if it comes to the conclusion that it was not so designedly or unnecessarily delayed it will proceed to discuss the evidence in the case and to write a full judgment. Let it be understood that I myself have not come to any conclusion on the question as to whether the claim or objection was designedly or unnecessarily delayed. Parties will not be at liberty to adduce any fresh evidence, but the ease, if it has to be decided, will be decided on the evidence already on the record. Parties will bear their own costs. The appellant may have the court-fees refunded.
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Firm Tundi Ram-Sheo Shanker Ram ... vs Ghure Lal And Anr.


High Court Of Judicature at Allahabad

24 April, 1939