Panioty vs Protab Chunder Chuckerbutty and Another

Wilson, J.—We think there is no ground for interfering with the order made in this case. The question is whether the Court below ought to have set aside the sale in execution under the terms of Section 313 of the Procedure Code. That section says: "The purchaser at any such sale may apply to the Court to set aside the sale, on the ground that the person whose property purported to be sold had no saleable interest therein. ". It is said in this case that the judgment debtor had no saleable interest in the property, on the ground that the property had been mortgaged, and that before the sale to the present appellant a decree in a suit on the mortgage had been obtained. We are not prepared to lay down broadly the proposition that wherever there is a mortgage on the property and a mortgage decree has been obtained, there is no saleable interest in the judgment-debtor. We are asked so to hold on the authority of the case of Naharmul Murwari v. Sadut Ali 8 CLR 468. We do not understand that the Court there intended to lay down any such proposition. That case was a peculiar one in its circumstances, and the order made was a very special one. The Court did not set aside the sale as between the purchaser and the decree-holder. It set aside the sale so far as to protect the purchaser, who, by reason of the mortgage, had perhaps obtained no profitable interest in the property from having to pay the balance of his purchase-money, after satisfying the decree-holder''s claim, into the pocket of the judgment-debtor himself. That is a very different case from the present one, which is a case between the decree-holder and purchaser, and not a case between the judgment-debtor and the purchaser. That case, therefore, appears to us not to govern this case.

The appeal will be dismissed with costs.