BHUBNESHWARI PRASAD SINGH Vs. HARIHAR PRASAD SINGH

JUDGEMENT

(1.) From the record of this Court it would appear that the rule is directed against the order of the Munsif dated 19 March 1934; but from the case now presented it would appear that, the order objected to was made two days prior to that date, that is to say, on 17 March 1934, on which date according to the argument on behalf of the petitioners the learned Judge declined to go into the question of whether the decree had been satisfied to the extent of half, the case of the judgment-debtors being that the decree, holders had purchased a part of the property to the extent of a moiety and thus the decree was satisfied to that amount.

(2.) Mr. Sushil Madhab Mullick appearing on behalf of the petitioners contends that the state of affairs to which I have referred in my previous observations, was not known to his client until the case under Order 21, Rule 90 was taken up; and it was therefore on that occasion that he requested the learned Judge to go into the other question of the satisfaction of the decree. It is contended that the Judge acted without; jurisdiction in refusing the request of the petitioners. The learned Judge's order was to the effect that he declined to go into this matter; that the date of the alleged satisfaction was entered in the petition and if desired the petitioners could raise it by a separate application under Section 47, Civil P.C. The real question that comes before me is whether the learned Judge was entitled to make that order. In my judgment he was, and for the reasons which I am about to give.

(3.) Whether the petitioners knew or did not know of the alleged satisfaction or not is not material. The learned Judge was considering the question of whether the sale had been conducted with such material irregularity as to justify him in setting it aside. Mr. Mullick now contends that continuing of the sale after part satisfaction was a fraud within the meaning of Order 21, Rule 90. In my judgment it was not. There are no particular merits, it is true, in stating any particular section or any particular order or rule of the Civil Procedure Code at the head of an application; but the learned Judge in considering the matter that came before him was bound to consider the jurisdiction given to him by the Code and act accordingly. He was bound in this case, as it was an application to set aside the sale on the ground of material irregularity to see what his jurisdiction was and confine himself to those questions.