Amir Baksha Sahib vs Venkatachala Mudali

Shephard, J.—The question raised in this appeal is whether an appeal lies against an order refusing relief to a decree--holder as against the

bidder at an auction-sale who is alleged to have made default.

The 293rd Section of the Code provides that the deficiency of price, resulting on a re-sale occasioned by the purchaser''s default, shall be

certified to the Court by the officer conducting the sale, ""and shall, at the instance of either the judgment-creditor or the judgment-debtor, be

recoverable from the defaulter under the rules contained in the chapter for the execution of a decree for money.

No such certificate as the Section contemplates appears to have been made. The decree--holder, alleging the bidder''s default, simply asked for

a warrant against the alleged defaulter. This application was dismissed by the District Munsif on the merits. ""On appeal being made the District

Judge held that he had no jurisdiction to entertain it. The 293rd Section is not one of the Sections mentioned in the 588th Section. The only ground,

therefore, on which it can be held that an appeal lies is that orders made in respect of an alleged default by the purchaser are in the nature of

decrees, and that the parties affected must be deemed to be parties to the suit within the meaning of the 244th Section. This was the view taken by

the Full Bench of the Allahabad court in a case decided with reference to the code of 1859 and Act XX III of 1861 Ram Dial v. Ram Das ILR 1

All. 181 It must be presumed that the case was present to the mind of the Legislature when the Codes of 1877 and 1882 were under

consideration, and that if the decision was thought to be wrong, an alteration would have been made in the Section so as to make the matter clear

in the future. This has not been done. The 293rd Section of the Code merely reproduces the 254th Section of the Code of 1859 with immaterial

variations of language. In the same Court it has also been held with reference to the 411th Section of the Code that the Government, seeking to

recover the amount of Court fees payable under a decree obtained by a pauper plaintiff, is placed in the position of a party to the suit, and that,

accordingly, an appeal lies against an order made under that Section. The language of the Section is similar to that used in the 293rd Section Janki

v. The Collector of Allahabad ILR 9 All. 64. In Calcutta the precise point which now arises was in 1889 decided in favour of the appellant

Baijnath Sahai v. Moheep Narain Singh ILR 16 Cal. 535. In Madras the point does not seem to have been decided in any reported case. The

case of Vallabhan v. Pangunni ILR 12 Mad. 454 only goes to show that where the contest is between the judgment--debtor and the decree--

holder who is alleged to have made default, the question between them must be treated as a question arising between the parties to the suit within

the meaning of the 244th Section.

As against the view above stated in favour of an appellant there is the recent case of Deoki Nandan Rai v. Tapesri Lal ILR 14 All. 201 In the

judgment in this case stress is laid on the fact that, whereas the 294th Section is mentioned, the 293rd Section is not mentioned in Section 588, and

considerable weight is attached to the decision of the same Court in Rahim Bakhsh v. Dhuri ILR 12 All. 397. I am unable to admit the force of the

argument suggested by the reference to the 294th Section. That Section contains no such language as is contained in the 293rd Section, and

because the Legislature thought fit to give an appeal, and that a final appeal, against orders passed under the 294th Section, it does not follow that

they intended orders made under the 293rd Section to be final.

As to the case of Rahim Bakhsh v. Dhuri ILR 12 All. 397 it is to be observed that it turns on another Section, the 315th, the language of which

is in a marked way distinguishable from that used in the 293rd. In the latter Section the imperative mood is used throughout, whereas in the 315th

the language is permissive. The liability for the repayment of the purchase--money may be enforced under the provisions of that Section, or the

aggrieved purchaser may recover it by suit Sham Karan v. Piari ILR 5 All. 596. It appears to me that no such option would be open to the

judgment--creditor or judgment--debtor seeking to recover from a defaulting purchaser the loss occasioned by a re-sale. The Section says

distinctly that the money shall be recoverable under the rules contained in chapter XIX. In this respect the language of the 293rd Section agrees

with that of the 411th. If the decision already cited with regard to the latter Section is correct, I fail to see why similarly, under the 293rd Section,

the purchaser should not be treated as a party to the suit. The effect of the whole Section, as I read it, is to make the certificate of the officer

conducting the sale equivalent to a decree and to put the aggrieved person and the defaulter in the position of decree--holder and judgment--

debtor. Unless this construction is put upon the Section, the anomaly results that in the case of the judgment--debtor complaining of default made

by the decree--holder who has had leave to bid there is an appeal and a second appeal, while in the case of the creditor complaining of default

made by a third person there is no appeal, and no other remedy open to the judgment--creditor.

The present case appears to me to fall within the principle of the decision of the Privy Council in Prosunno Coomar Sanyal v. Kasi Das Sanyal

L.R. 19 IndAp 166 There it was held that the 244th Section was applicable notwithstanding that the purchaser against whom the sale was sought

to be set aside had been no party to the former suit. It was observed that ""Their Lordships are glad to find that the Courts in India have not placed

any narrow construction on the language of Section 244, and that when a question has arisen as to the execution, discharge or satisfaction of a

decree between the parties to the suit in which the decree was passed, the fact that the purchaser who is no party to the suit is interested in the

result has never been held a bar to the application of the Section."" Here I conceive there can be no doubt that the question is one relating to the

execution, discharge or satisfaction of a decree.

Holding, therefore, that an appeal does lie against an order passed u/s 293, I would reverse the order of the lower Appellate Court and remand

the application for disposal on the merits. Costs to be provided for in the revised order.

Best, J.

I concur.