Bhubneshwari Prasad Singh and Others vs Harihar Prasad Singh and Others

Wort, J.—From the record of this Court it would appear that the rule is directed against the order of the Munsif dated 19th March 1934; but from the case now presented it would appear that, the order objected to was made two days prior to that date, that is to say, on 17th March 1934, on which date according to the argument on behalf of the petitioners the learned Judge declined to go into the question of whether the decree had been satisfied to the extent of half, the case of the judgment-debtors being that the decree, holders had purchased a part of the property to the extent of a moiety and thus the decree was satisfied to that amount.

Mr. Sushil Madhab Mullick appearing on behalf of the petitioners contends that the state of affairs to which I have referred in my previous observations, was not known to his client until the case under Order 21, Rule 90 was taken up; and it was therefore on that occasion that he requested the learned Judge to go into the other question of the satisfaction of the decree. It is contended that the Judge acted without; jurisdiction in refusing the request of the petitioners. The learned Judge''s order was to the effect that he declined to go into this matter; that the date of the alleged satisfaction was entered in the petition and if desired the petitioners could raise it by a separate application u/s 47, Civil P.C. The real question that comes before me is whether the learned Judge was entitled to make that order. In my judgment he was, and for the reasons which I am about to give.

Whether the petitioners knew or did not know of the alleged satisfaction or not is not material. The learned Judge was considering the question of whether the sale had been conducted with such material irregularity as to justify him in setting it aside. Mr. Mullick now contends that continuing of the sale after part satisfaction was a fraud within the meaning of Order 21, Rule 90. In my judgment it was not. There are no particular merits, it is true, in stating any particular section or any particular order or rule of the CPC at the head of an application; but the learned Judge in considering the matter that came before him was bound to consider the jurisdiction given to him by the Code and act accordingly. He was bound in this case, as it was an application to set aside the sale on the ground of material irregularity to see what his jurisdiction was and confine himself to those questions.

In my judgment the petition filed on 17th March 1934 was not a matter which came within the jurisdiction of the Judge in considering an application under Order 21, Rule 90. The basis of such applications is entirely different, An application to set aside the sale on the ground of material irregularity presupposes a right on the part of the decree-holder to sell the property in execution and conduct the sale accordingly. The petition in which it is contended that the decree has been satisfied is based on the assumption (in this case at any rate) that no sale ought to have been held; but that does not dispose of the matter.

The learned Judge, as I have said, indicated that the petitioners had a right to go (after stating the necessary particulars) to the Court under the much wider powers given to that Court u/s 47, Civil P.C.; but for the reasons best known to the petitioners themselves they refrained from doing so. It seems to me that on 17th March 1934, the petitioners had no grievance whatever. They could have done what the Judge indicated and their trouble would have ended: either the Court could have come to the conclusion in their favour or otherwise. But even that does not dispose of the matter. The order dismissing the application under Order 21, Rule 90 was made on 19th March, two days later.

Then the petitioners proceeded on appeal to the District Judge. It is true that in para. 7 of their petition they stated that the Judge ought to have come to the conclusion that half the decretal amount had been satisfied, but nowhere do they object to the order made by the Judge indicating that he was to proceed u/s 47 giving the necessary particulars and declining to hear witnesses on that matter on that date, that is to say, 17th March. It seems to me therefore on the facts, the statement of Mr. Husnain appearing on behalf of the respondents is correct that the petitioners did in fact sit down under the order of 17th March. In my judgment, as I have already said, on 17th March the petitioners had no grievance and no grievance has been created by the effluxion of time between 17th March and this date.

The petitioners had certain rights or they must be presumed to have certain rights apart from the question of limitation which I do not propose to deal with and I assume that those rights exist at the present moment. This Court does not revise the orders of the Subordinate Courts in matters in which the parties have remedies within their own hands, as they had in this case. For these reasons it seems to me that the rule must be discharged with costs: hearing fee three gold mohurs. The stay order stands vacated.