SURENDRA MOHINI DEBI Vs. LOHARAM CHATTOPADHYA

JUDGEMENT

(1.) A suit was brought by Shib Kumari Debi, who is described in the present Rule as 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 patni. She obtained a decree and the dur patni was sold in satisfaction of that decree on the 12th June 1907 and was 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 Chat-topadhya. On the 31st August 1907, an application was made under Section 311 of the old Code of Civil Procedure by Debendra Nath Chattopadhya, 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 103 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, Civil Procedure Code, 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, she put in, an application under Section 312, Civil Procedure Code, asking that the sale to her might be confirmed and the sale certificate issued. The application under Section 312 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 came to before. 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 (No. 417s of 1909) on the opposite party to show cause why the order of the District Judge of Nadia, dated the 29th August 1909, should not be set aside and the sale confirmed and the sale certificate granted to the auction-purchaser or why such 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.