BEJOY SINGH DUDHURIA Vs. HUKUM CHAND

JUDGEMENT

(1.) This is an appeal against an order passed, by the District Judge of Moorshedabad on the 12 July, 1901, rejecting an application made by the appellant under the provisions of Section 311 of the Civil P. C. to set aside a sale in execution of a decree on the ground of fraud or material irregularity in the conduct of it.

(2.) The facts of the case, as they are to be gathered from the materials before us, are as follows. On a date which does not appear, the appellant obtained a decree on the Original Side of this Court against the respondent, Chattrapat Singh, who may be referred to as the judgment-debtor, for a sum of Rs. 11, 345-11. This decree was transferred to the Court of the District Judge of Moorshedabad for execution, and was thereafter transferred by that Court to the Court of the Subordinate Judge, where the proceedings in execution were registered as case No. 93 of 1900. When these transfers took place we are not informed, but on the 8th November 1900 the appellant caused a house with the appurtenant land and premises, belonging to the judgment-debtor and situated at Baluchar, in the district of Moorshedabad, to be attached and advertised for sale in execution of his decree. The sale was fixed in the first instance for the 15 January, 1901, hut in consequence of a claim put forward by the judgment-debtor's son to a one-third share of the property, it was stayed. Subsequently the appellant applied for the sale of a two-third share only of the property, and on that application the 15 July, 1901, was the date fixed for sale. 2. Before that date, however, namely, on the 13 February 1901, the respondents, Hukum Chand and Tara Chand, who held a decree of a Court of Small Causes against the judgment-debtor, which had also been transferred to the Court of the District Judge of Moorshodabad for execution, and there retained, applied to that Court for attachment and sale of the judgment-debtor's house and promises at Baluchar. They were attached accordingly in March, 1901, and were brought to sale and purchased for Rs. 12,000 by the respondent, Bishen Chand Baihant, on the 22 May, following. Prior to that date, it appears that several other decree- holders had applied to the District Judge's Court for execution of decrees held by them against Chattrapat Singh and, in the month of July, a rateable division of the proceeds of the sale was made among them by the District Judge. On the 20 June, the application, out of which this appeal has arisen, was preferred by the appellant to the District Court, and was disposed of on the 12 July along with another application of a similar kind made by one Golap Chand Barjid, the appellant in appeal from original order No. 394 of 1901.

(3.) With the merits of the appellant's application we are not now concerned. It was dismissed by the District Judge on the authority of Matungini Dassi V/s. Monmotha Nath Bosc (1) (1900) 4 C. W. N. 542., on the ground that the appellant had no locus standi to apply to the Court to set aside the sale of the 22nd May, and whether the learned District Judge was correct in so holding is the only question raised by this appeal. Before proceeding to consider that question, it is; however, necessary to notice an objection to the competency of the appeal taken for the respondents by the learned Advocate-General. His contention was that the appellant, having no locus standi to apply under Section 311 of the Code, was not in a position to avail himself of the provisions of Clause 16 of Section 588, upon which the right of appeal depended. There is, however, in our opinion no force in the contention. The objection begs the question at issue in the appeal and confuses the right to apply under Section 311 with the right of appeal against an adverse order made under that section. If the appellant had no locus standi to apply under Section 311, he will fail on that ground. But even if this be so, we have no doubt that he had a right of appeal to this Court for the purpose of determining whether he had a locus standi.