Musammat Bhawani Kuar and Others vs Gulab Rai and Others

A preliminary objection is taken by the pleader for the respondents u/s 252 of the Procedure Code which provides "no irregularity in the sale of moveable property under an execution shall vitiate the sale, but any person who may sustain any injury by reason of such irregularity may recover damages by a suit in court." But this assumes that the subject of sale here is moveable property, and that the judgments of the lower Courts are right in that respect. We are, however, clearly of opinion that the right which is the subject of sale under the decree is legally of the nature of Immovable property, and that Section 252 does not therefore apply. As against the appellants the decree is for Rs. 1,593-3-0 together with Rs. 194-10-6, amount of costs, and it orders absolutely that the money shall be recoverable from 5 biswas, 11 biswansis and 2 1/2 kachwansis.

The decree is, therefore, absolutely for money recoverable by sale of Immovable property hypothecated for its payment. The right and interest which it creates is a right in a judgment-debt recoverable by sale of Immovable property charged with its payment. The decree thus conveyed to the decree-holders a subsisting interest in the nature of a charge on the hypothecated property, and the sale of their rights under the decree must be held to be a sale of such an interest in moveable property to which the provisions of the Code for sales of Immovable property will apply.

We reverse the order of the Judge and remand the case to him for decision on the merits; lie has erred in considering the sale in this case to be a sale of moveable property.