POKHAR SINGH Vs. TULA RAM

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order dismissing; an objection under Section 47, Civil P.C., to an auction sale. In execution of a simple money decree a house of the judgment-debtor-objector was attached, sometime before 13 December 1931. He did not appear at all to rile any objection to the attachment. Various, steps were taken and notices were issued under Order 21, Rule 50, for the judgment-debtor to appear at the time of the settlement of the terms of the-proclamation of sale; but he did not appear at all. Ultimately the property attached was sold on 19 January 1933, and purchased by the decree- holder. Before however the sale could be confirmed, the judgment-debtor on 18th February 1933, filed an application under Order 21, Rule 90, praying for the setting a side of the sale on the ground of certain irregularities and fraud in conducting and publishing it. Later, on 27 April 1933, but before the sale could be confirmed, he filed another application under Section 47, Civil P.C., objecting to the sale on the ground that the property was the house of an agriculturist and was exempt from attachment and sale under Section 60, Civil P.C. The Court below has dismissed this objection summarily on the ground that it was not maintainable inasmuch as it was filed after the sale had taken place. The appeal has been preferred from this last order.

(2.) The Court below has relied on the authority of the case in Umed V/s. Jas Ram (1907) 29 All. 612 in support of the view that the objection was too late. In that case the learned Single Judge relied on Durga Charan Mandal V/s. Kali Prasanna Sarkar (1899) 26 Cal. 727 and Ram Chhaibar Misir V/s. Bechu Bhagat (1885) 7 All. 641 both of which can be easily distinguished. Indeed, in the former case, the Calcutta High Court actually held that: Even the confirmation of the sale was no bar to an application made by the judgment-debtor to have it declared that in execution of such a decree the holding could not be sold, as the question was one relating to the execution, discharge and satisfaction of the decree.

(3.) The main ground on which the learned Judge held that the objection could not be entertained was that: In my opinion a judgment-debtor who might have raised objections prior to the sale but who has refrained from doing so, and who might have appealed against the order for sale, has no right after the sale has been carried out to prefer an objection that the property sold was not legally saleable.