SURENDRA MOHINI DEBI Vs. AMARESH CHANDRA CHATTERJEE

JUDGEMENT

(1.) A suit was brought by Shib Coomari Debi, who is described in the present Rule as the opposite party No. 21, against other persons, who are also parties to this Rule, or against their previous representatives-in-interest for the recovery of the rent of a certain dur-putni. Shib Coomari Debi obtained an ex parte decree, and the dur-putni was sold in satisfaction of that decree on the 12th June 1907, and purchased by the petitioner in this Rule, Surendra Mohini Debi who, from her description, appears to be the wife of the opposite party No. 7, Jnanendra Nath Chattopadhyaya. On the 31st July 1907 an application was made, under Section 311 of the old Code of Civil Procedure, by Debendra Nath Chattopadhyaya, opposite party No. 13, and on the same date three other judgment-debtors, namely, opposite parties Nos. 1, 14 and 17, filed a similar application. The three last-mentioned persons also filed an application under Section 108 of the old Code to have the ex parte decree set aside. On the 4th January 1908 the application came up for disposal, and a petition of compromise between the decree-holder and the judgment-debtors was filed, by which the decree-holder consented to the sale being set aside on receipt of the amount decreed. The application under Section 108 of the Code of Civil Procedure was also dismissed on the same day.

(2.) These proceedings were taken without notice to the auction-purchaser, and the case which is set up by the auction-purchaser, who is the petitioner in this Rule, is that she was not aware of these proceedings.

(3.) On the 27th March 1908 the petitioner put in an application under Section 312 of the Code of Civil Procedure asking that the sale to her might be confirmed and the sale-certificate issued. That application was rejected by the Court of first instance on the ground that the sale, having already been set aside, could not be confirmed. There was an appeal against this order to the lower Appellate Court, and the case was remanded. On remand the Court of first instance arrived at the same conclusion as it had come to before. 1 There was an appeal again to the District Judge against the decision on remand, and the District Judge dismissed the appeal, holding that as the sale had been set aside he could not interfere. At the same time he expressed the opinion that the auction-purchaser, not having been made a party to the proceedings for setting aside the sale, was not bound by them. Against this decision of the District Judge the auction-purchaser first applied to this Court on the 29th November 1909, and obtained the present Rule 1 (No. 4178 of 1909) on the opposite party to show cause why the order of the District Judge, dated, the 29th July 1909, should not be set aside, the sale confirmed and the sale-certificate granted to her, or why such. If other order should not be made as to this Court might seem fit and proper. On the 3rd March 1910 the petitioner also filed an appeal against the same order, which is appeal from order No. 95 of 1910, and the Appeal, and the Rule have now come before us for disposal.