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1905 DIGILAW 159 (CAL)

Manik Lal Seal v. Bonomali Mukerjee

1905-08-02

body1905
JUDGMENT 1. In this case the judgment-debtor applied to have an execution sale set aside upon two grounds, first, under sec. 311 of the CPC for irregularities and consequent injury and, secondly, under sec. 244, that the Court had no jurisdiction to sell the property. The Subordinate Judge found against the Petitioner upon both grounds. 2. In appeal the District Judge dealt only with the question of the validity of the sale and holding that the Court was debarred by the provisions of sec 273 from selling the property in execution directed that the sale should be set aside. 3. Against this order the decree-holder appeals to this Court. 4. The facts are as follows :-- The Court in which the present execution case was pending received an order from another Court under sec 273 of the Code for attaching the decree. The Court instead of giving effect to the attachment order returned it with an intimation that it did not contain information as to the amount of the decree under which the attachment order was issued. The Court then proceeded to sell the property and we have to consider whether the sale was invalid. The words of the section so far as they are relevant to this case are :--" If the property be a decree for money passed by any other Court, the attachment shall be made by a notice in writing to such Court under the hand of the Judge of the Court which passed the decree sought to be executed, requesting the former Court to stay the execution of its decree until such notice is cancelled by the Court from which it was sent. The Court receiving such notice shall stay execution accordingly, unless and until (a) the Court which passed the decree sought to be executed cancels the notice or (b) the holder of the decree sought to be executed applies to the Court receiving such notice to execute its own decree. 5. It is clear that the Court on receiving the order for attaching the decree was bound to comply therewith. The requisition for further information as to the amount under execution was not such as was required by law and could not avail to give the Court authority to proceed with the sale in contravention of the clear terms of the law. 6. The requisition for further information as to the amount under execution was not such as was required by law and could not avail to give the Court authority to proceed with the sale in contravention of the clear terms of the law. 6. It has been urged before us by the learned vakil for the Appellant that the procedure adopted by the Court was a mere irregularity and that the sale ought not therefore to be set aside except upon proof that the judgment-debtor had sustained substantial injury in consequence of such irregularity, and he has referred us to certain sections of the Code, such at for example, sec. 290 under which the Court is required to carry out certain preliminaries before proceeding to sell the property. It has been held that the non-compliance with those preliminaries, does not necessarily render the sale invalid, but would constitute an irregularity within the meaning of sec. 311. We are unable to accept the proposition that sec. 273 of the CPC can be safely interpreted by the analogy of other sections of the same Code. Under sec. 290, the Court is charged with the duty for carrying out the sale, and is required to observe certain preliminaries as to fixing the date of sale. Under sec. 273, the attachment of the decree has the effect of staying further execution and of debarring the Court from selling the property unless and until that bar has been removed in either of the ways specified in the section. The Court could not proceed with the sale, it had no jurisdiction to do so, and the course adopted, necessarily, we think renders the sale invalid. We therefore affirm the order of the lower Court and dismiss this appeal with costs, the bearing fee being assessed at 2 gold mohurs.