Govinda Padayachi vs Velu Murugayya Chettiar and Another

Pakenham Walsh, J.—In this case the auction purchaser is the Appellant. He got a decree which on the date of sale amounted to Rs. 2,127

odd. The judgment-debtor was an undivided member of a joint Hindu family entitled to an undivided one-fifth share in the family property. At the

request of the appellant the property which was the total property of the family was divided into two lots for sale.

The Court had given standing instructions that in Court sales no bid was to be finally accepted before the Court had sanctioned it. The District

Munsif had also informed the Deputy Nazir, who conducted the sale, that in this sale he should not sell more than would realize the decree amount.

The first lot was valued at about Rs. 940. It had a usufructuary mortgage on it for Rs. 400.

It was put up for sale first and the decree-holder purchased it for Rs. 950. Then the second lot was put up and he purchased this for Rs. 2,275.

When the Dy. Nazir brought the papers to the Court in the evening for confirmation he told the District Munsif that the bids had fetched more than

the Commissioner''s valuation; but he did not inform him that the bid for the second properly was enough to cover the decree amount. The District

Munsif not realizing this confirmed both bids. The decree-holder paid the balance of about Rs. 1,000 due into Court on the same day and on the

next day the District Munsif discovered his error. The judgment-debtor Ramaswami Chetti had died by the time of the sale and his legal

representatives were his two sons, of whom one was said not to be in British India.

On a notice by. Court the other son appeared and said he was willing that the sales of both the lots should be set aside and at least that of lot

No. 1 should be set aside. The District Munsif asked the appellant to put in a counter-petition which he did stating that the sale of both lots should

be confirmed. The District Munsif u/s 151 set aside the sale of lot No. 1 and confirmed that of lot No. 2. Appellant filed an appeal to the District

Judge who confirmed the order.

Against this he has put in an Appeal and a Civil Revision Petition to this Court. As there is a Civil Revision Petition it is immaterial whether an

appeal lies; but Jackson, J., held in Akshia Pillai Vs. Govindarajulu Chetti and Others, that if a Court is approached in execution u/s 151 and

passes an order of this kind there is an appeal and a second appeal, and in this very case he directed the Civil Revision Petition to be put up with

the appeal.

The sole ground taken by the appellant is that as there was no application by the judgment-debtor under Order 21, Rule 90, Civil Procedure

Code, to set aside the sale for the irregularity, the Court had no power to do so u/s 151. He relies on the general principles stated in Panchanam

Singha Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29 , Gopal Chandra Mukerji v. Notobar Kundu (1912) 15 I.C. 53, Ghuznavi v. The Allahabad

Bank, Ltd. ILR (1917) Cal. 929 and Joshi Shib Prakash v. Jinghuria ILR (1923) All. 144 that Section 151 is only applicable where there is no

remedy prescribed by the Code. Panchanam Singha Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29 does not help appellant at all. In Gopal

Chandra Mukerji v. Notobar Kundu (1912) 15 I.C. 53 the order u/s 151 was upheld; in Joshi Shib Prakash v. Jinghuria ILR (1923) All. 144 the

party wilfully neglected to avail himself of the remedy open under the Code.

I think the authorities are clear that the Court can, where its orders have not been carried out, and it has been misled, correct its own error.

The only two cases quoted for the appellant which seem to me to bear at all on this matter are Moulvie Abdul Hye v. Macrae (1874) 23 W.R.

1 and that case seems to be really against him. There a Subordinate Judge had in execution ordered the sale of several factories in different lots.

The District Judge then removed the execution proceedings to his own Court and ordered that the factories should all be sold as one lot. It was

held that the District Judge had no power to call up the execution proceedings to his own Court or to pass the order he did, that the judgment-

debtor had suffered material injury in consequence, and the learned Judges set aside the sale u/s 256 which corresponded to Order 21, Rule 90.

The decision was in 1875 long before Section 151 had been introduced in the Code of 1908, though the existence of such a power in the Court

had been recognised.

The other case, Satia Nand v. Jhangi Ram AIR 1932 Lah. 238, quoted for the appellant, is not parallel. In that case a judgment-debtor who

made an application under Order 21, Rule 89 to set aside a sale did not deposit the 5 per cent. required, and the Court u/s 151 made an order

setting aside the sale. It was held that it had no power to do so. There was no question there of the power of the Court to rectify its own mistake.

On the other hand there are several cases which are clearly in respondents'' favour. In Mul Raj v. Bura Mal ILR (1931) Lah. 602 it was held

that ""when the Court is empowered to make an order, it has inherent jurisdiction to see that the order is carried into effect. When therefore an

execution sale admittedly contravened the express direction of the Court then the Court can suo motu set aside the sale u/s 151.

That case exactly applies here.

Then there is Raghavachariar v. Murugesa Mudali ILR (1923) Mad. 583 : 44 M.L.J. 680 quoted by both the Courts below. It was sought to

distinguish this case by saying that there the concealment was a fraudulent one by the purchaser; but I do not think that this is sufficient to make

inapplicable the principle laid down by Chief Justice Schwabe there about ""non-disclosure to the Court of relevant facts unknown to the Court and

which there was a duty to bring before the Court"" justifying an order by Court u/s 151.

While it is not suggested that there was anything intentional in the action of the Dy. Nazir in failing to appraise the Court that, the bid for lot No.

was sufficient to cover the decree amount, it was clearly his duty to have done so in the face of the express instructions issued, and the Court

was misled by his failure to do so.

With regard to the argument of hardship raised that if lot No. 1 does not fall to the share of the deceased judgment-debtor at a family division

the appellant will be at a disadvantage, it was pointed out by the Lower Appellate Court that the separation of the property into two lots was at

appellant''s own request and so he cannot complain of any results which may flow from it.

In my opinion the order of the Courts below was correct.

The Second Appeal fails and is dismissed with costs (one set).