Thaleri Pathumma vs Thandora Muhammad

Shephard, J.—The ground urged by the judgment-debtor for the cancellation of the sale is that the decree holder being the mortgagee was

not entitled to bring the mortgaged property to sale in execution of a decree for'' money. This objection founded on Section 99 of the Transfer of

Property Act, stands outside the scope of the Sections 311 and 313 of the Code of Civil Procedure, and the question whether u/s 312 of the

Code the sale should be confirmed does not arise.

The real question in my opinion is whether the order for sale was an order to which the judgment-debtor was a party, in other words, whether it

was made after notice given to her.

If the judgment-debtor was a party to the order, she is bound by it and is now precluded from saying that it ought not to have been passed. (See

Durga Gharan Mandal v. Kali Prasanna Sarhar I.L.R.(1899) C. 727. The District Judge finds that the judgment-debtor''s assertion that she did not

know of the intention to sell is not worthy of belief. The allegation made in the original petition is by no means satisfactory, and since there must

have been an attachment before sale, it is difficult to see how it can be true. I do not think we ought to give a further opportunity of proving a case

which in effect two courts have found not to be proved.

On the ground that the judgment-debtor is bound by the order for sale, I would dismiss this appeal with costs.

Benson, J.

I concur.