တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၉၀

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ဒီကရီကိုဇာရီပြုလုပ်ရာတွင်အိမ်နှင့်မြေကိုလေလံတင်ရောင်းချခြင်း။

တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၉၀အရလေလံတင်ရောင်းချခြင်းကိုပယ်ဖျက်ပေးရန်လျှောက်ထားခြင်း။

တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၉၀အရလျှောက်ထားခွင့်ရှိသူ။

ထိုပုဒ်မအရလျှောက်ထားရာတွင်မည်သည့်အချက်အပေါ်အခြေခံရန်လိုအပ်ခြင်း။

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1997 BLR  129 

ဦးသိန်း နှင့် ဒေါ်ခင်သန်းထွေးပါ၁၅

တရားရုံးချုပ်တရားသူကြီးဦးတင်အုံးရှေ့တွင်

စီရင်ထုံးစာမျက်နှာ၁၃၂တွင်၊တရားရုံးချုပ်ကအောက်ပါအတိုင်းသုံးသပ်သည်-

“တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၈၉သည်ဒီကရီအတည်ပြုရေးအတွက်ပစ္စည်းရောင်းချခြင်းကိုအတည်မပြုမီတရားရှုံးအားဒီကရီကျငွေနှင့်လေလံဆွဲဝယ်သူကိုလျော်ကြေးပေးခြင်းဖြင့်ရောင်းချမှုကိုပယ်ဖျက်ခွင့်ရရန်၊နောက်ဆုံးအခွင့်အရေးပေးသည့်အနေဖြင့်ပြဌာန်းထားခြင်းဖြစ်သည်။အေအိုင်အာ၊ပီစီ၊၂၉အမှုကိုကြည့်ပါ။”

ကိုးကားရည်ညွှန်းသော၊အေအိုင်အာ၊ပီစီ၊၂၉၏အပြည့်အစုံမှာ၊အေအိုင်အာ၊၁၉၄၃၊ပီစီ၊၂၉ဖြစ်သည်။

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1943 0 AIR(PC) 29; 1942 70 LawReportsInd.App. 1; 1942 0 Supreme(SC) 28

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]

LORD MACMILLAN, LORD WRIGHT, LORD PORTER, SIR GEORGE RANKIN, AND SIR MADHAVAN NAIR.

BABU RAJA MOHAN MANUCHA - Appellant

                       Versus

BABU MANZOOR AHMAD KHAN - Respondents

On appeal from the Chief Court of Oudh at Lucknow.

Decided On : Dec. 14. 1942.

စီရင်ထုံးစာမျက်နှာ၃၁တွင်၊တရားသူကြီး Sir George Rankin ကအောက်ပါအတိုင်းသုံးသပ်သည်-

“Argument on these lines has been addressed to the Board, as it was to the Courts in India, and their Lordships have given it the careful consideration Which it deserves. They are not however of opinion that on 12th August 1919, the Collector could no longer Exercise or perform in respect of Mahona Poorab anyof his powers or duties under paras. 1 to 10 of Sch. 3, and they are not or opinion that any written permission of the Collector has been shown. On the first point, under Rr. 996 to 1000 (which correspond to O.21 Rr. 89 to 94 of the Code) time has to be allowed after the sale for applications to set it aside, either (as in the present case) by way of allowing to the judgment-debtor a last chance to save his property or by reason of irregularity or fraud in the conduct of the sale. Not until this time has expired- it is 30 days from the date of sale under Art. 166, Limitation Act, 1908-can an order be made confirming the sale even if no application be made to set it aside: the sale only becomes absolute when the Collector confirms it (R.998, 0. 21 decree-holder and stated that the money in Court would R. 92): and it them becomes the Collector's duty to issue the sale certificate which is the purchaser's document of title (R.1000, 0.21, R.94). These duties and powers of the Collector all arise to him in the case of a mortgage decree out of paras. 1 and 10 of Sch. 3 to the Code which authorise him to sell the property in whole or in part and in one or more lots. Under para. 9 he has duties in addition, e.g., as to holding the sale proceeds at the disposal of the civil Court which has ordered execution. As is shown by the terms of S. 70 of the Code and by their subject-matter, the rules which have been referred to are made for regulating the procedure of the Collector and his subordinates and for investing them with the necessary powers to carry out a judicial sale. They are not extraneous to his duty to conduct the sale.”

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စီရင်ထုံးစာမျက်နှာ၁၃၃တွင်၊တရားရုံးချုပ်ကအောက်ပါအတိုင်းသုံးသပ်သည်-

“တရားမကျင့်ထုံးဥပဒေအမိန့်၂၁၊နည်း၉၀အရလျှောက်ထားခွင့်ရှိသူများတွင်ရောင်းချခြင်းကြောင့်အကျိုးသက်ဆိုင်ခွင့်ထိခိုက်နစ်နာရသူများအကျုံးဝင်လျက်ရှိရာယင်းသို့နစ်နာသူများနှင့်တရားရှုံးထံမှအမှုအတောအတွင်းဝယ်ယူသူလည်းပါဝင်သည်။အေအိုင်အာ၊၁၉၂၇၊မဒရပ်၊၇၈၃အမှုကိုရည်ညွှန်းသည်။”

(AIR 1927 Mad 783) 

A.P. Ismail Rowther vs Mynoon Bivi And Ors.

Madras High Court

A.P. Ismail Rowther vs Mynoon Bivi And Ors. 

on 28 October, 1964

Equivalent citations: AIR 1966 Mad 84

Bench: Venkatadri

ORDER

1. This revision petition arises out of execution proceedings in O. S. 105 of 1950. The learned District Judge refused to set aside the sale of attached properties in the above execution proceedings, thereby reversing the order of the District Munsif, setting aside the sale on grounds of material irregularity and fraud in the conduct of the sale. The brief facts necessary for the disposal of this petition are as follows:

(2) The petitioner herein is a third party decreeholder. He had obtained decrees in O. S. 162 of 1960, in S. C. No. 172 of 1951 and in S. C. 455 of 1955 against one Pakkiri Moideen Rowther. The second respondent is another rival decreeholder in O. S. 105 of 1950 on the file of the District Munsif Court, Tirunelveli, against the said Pakkiri Moidden Rowther. The petitioner filed execution petitions in the above said three suits, but he did not pursue the execution proceedings, as he did not comply with the orders of court. While so, the decreeholder in O. S. 105 of 1950, Rangaswami Naidu, filed E. P. 334 of 1961 out of which this revision petition has arisen, and brought items 1 to 23 for sale after attachment not only of the said items but also several other items belonging to the judgment debtor. In the court auction sale, items 1 to 23 were purchased by the first respondent herein, Mynoon Bivi, the wife of the judgment debtor for a sum of Rs. 1505 subject to a othi for Rs. 2500. Soon after the purchase, the said Mynoon Bivi mortgaged item 6 of the properties for a sum of Rs. 2600 under Ex. A. 1. Now the petitioner filed the application under O. XXI, R. 90 C.P.C. to set aside the sale, on the ground that the properties would be worth more than Rs. 5000 that there was no proper publication of the sale proclamation, that respondents 2 and 3 herein had colluded with the first respondent herein, that the judgment debtor had fraudulently purchased the properties in his wife's name for a very low price, that the sale was not valid in law and that therefore the sale must be set aside. The petitioner's contention is that he is interested in the properties as he had already obtained decrees against the judgment debtor and therefore he is affected.

(3) The learned District Munsif came to the conclusion that there was no proper sale proclamation as required by O. XXI, Rr. 54(2), 66 and 67(1) C.P.C. that the judgment debtor, the third respondent herein had so fraudulently arranged to purchase the properties in court auction in the name of his wife for his own benefit for a very inadequate price and that the petitioner herein had locus standi to file the application. On those findings, the learned District Munsif set aside the sale held on 6-10-1961.

(4) On appeal the learned District Judge of Tirunelveli reversed the finding of the District Munsif and came to the conclusion that the sale was not hit by any material irregularity or fraud, that the property was sold for good consideration and that the petitioner had no locus standi to file the application for setting aside the sale. On these findings, the learned District Judge dismissed the application of the petitioner. It is against this order the revision petition has been filed.

(5) The points for consideration in this petition are (1) whether the court has got inherent jurisdiction to set aside the sale on grounds of material irregularity and fraud practised upon either by the decreeholder or the judgment debtor, in bringing the properties to sale, and (2) whether the petitioner is directly and immediately interested in the properties brought to sale.

(6) Learned counsel for the petitioner cited a number of decisions. In Raghavachariar v. Murugesa Mudaliar, 44 Mad LJ 680: (AIR 1923 Mad 635) it has been held that O. XXI, R. 92 C.P.C. does not oust the inherent power of a court to interfere to cancel the sale, even though no party has applied for cancellation when the court discovers in the course of the proceedings that the decreeholder deliberately misled it and profited thereby to the disadvantage of the judgment debtor or the judgment debtor's creditors. In Punjab Mercantile Bank v. Kishan Singh, , a person who had not even obtained a decree filed an application for setting aside a sale, on the ground that he was very eager to purchase the property, that he had offered to purchase the property for Rs. 20,000, but suddenly without his knowledge the property was sold for a very low sum of Rs. 5000 and that he was ready and willing to purchase the property for the sum offered by him. Now, the court had to consider whether that person had any locus standi to bring the application. The Punjab High Court held:

"Even if the person who brought to light the fraud had no locus standi either under S. 47 or O. 21, R. 90, the court had an ample reserve of inherent powers to satisfy itself suo motu that its process had been abused. Because the source of information happened to be a person who had no locus standi, the court could not close its eyes and decline to exercise its inherent powers to set aside the sale on being satisfied that as a result of conspiracy a fraud had been perpetrated and its process had been abused."

It is clear from the two decisions cited above that the court has got inherent powers to set aside a sale, even though the petitioner had locus standi or not to file an application for setting aside the sale.

7) The next point is whether the petitioner is directly and immediately interested in the properties sold in the course of the execution proceedings. It is a common fact that he is a rival decreeholder against a common judgment debtor. It is also an admitted fact that he filed execution applications in three suits, though he did not pursue the matter, since he did not comply with the orders of the court. He has also purchased some items of properties from the judgment debtor long before the decreeholder in O. S. 105 of 1950, the second respondent herein, attached items 1 to 23. The purchases are admittedly purchases by the wife of the judgment debtor for a low sum of Rs. 1505 subject to an othi for a sum of Rs. 2500.

(8) Adverting to the case law on the point, in Narayanan v. Pappayi, 26 Mad LW 164: (AIR 1927 Mad 783) the question arose whether the fourth defendant has locus standi to file the application and whether he was a person whose interests were affected by the sale. The fourth defendant purchased item 1 of the property which was directed to be sold after items 2 and 3. After the court sale of items 2 and 3, the legal representatives of the fourth defendant filed an application under O. 21, R. 90 C.P.C. to set aside the sale on the ground of irregularity and fraud. The learned Judge (Srinivasa Aiyangar J.) held:

"The mere fact that a person is a creditor of a judgment debtor is not sufficient to show that he would be affected by any sale of the property of the judgment debtor. It depends upon circumstances. It depends upon the solvency of the judgment debtor. It may depend upon various other matters. But the expression used by the Legislature being 'interested' it must be taken to mean directly or immediately interested and even so construed it is clear that the fourth defendant's legal representative is a person that is directly interested and even immediately interested in the price realised by the sale and therefore a person directly and immediately affected by sale."

(9) In Ayyappa v. Kasiperumal, ILR (1939) Mad 374: (AIR 1939 Mad 250) (FB) the petitioner attached certain properties before judgment and in due course obtained a decree; but before the date of that decree, the attached properties were sold in execution of a decree obtained by another creditor. As soon as the petitioner obtained his decree, he filed an application under O. XXI, R. 90 to set aside the execution sale. The Full Bench, following the principle laid down in 26 Mad LW 164: (AIR 1927 Mad 783) viz, that the legislature intended to confer the right to apply, on any one who was directly and immediately affected by the sale, held that a person who had obtained an attachment before judgment was a person whose interests were affected within the meaning of O. XXI, R. 90 C.P.C. when the property attached had been sold in execution of a decree obtained by another person. In Murugappa v. Kannamai, , the question was whether a creditor who had obtained a decree against a debtor whose property had been sold in execution of a decree obtained by another creditor could apply to have the sale set aside under O. XXI, R. 90 C.P.C. Of course, if the applicant was not only the holder of another decree, but also had applied for rateable distribution, then he would have the right to apply; but in the case before the Division Bench, admittedly the decreeholder who was the appellant before them had not taken any step in execution. The Division Bench held that he would not, therefore, be a person entitled to share in the rate-able distribution of the assets. The only question that remained for consideration of the Division Bench was whether he could be said to be a person whose interests were affected by the sale. Explaining the decision of the Full Bench in ILR (1939) Mad 374: (AIR 1939 Mad 250) (FB) the Division Bench consisting of Rajamannar C.J. and Ganapatia Pillai J. observed as follows:

"The words are indeed very wide and on a literal construction of the words not only decree-holders but even ordinary creditors who have not yet sought to enforce their claims can be said to be affected by the sale of any of the properties of their debtor. Indeed any one who has a prospective claim which can be satisfied by a sale of any of the properties of a person against whom he has the claim can be said to be a person whose interests are affected by the sale of such property. We have no hesitation in holding that this wide construction was not contemplated by the words. The interests which are alleged to be affected by the sale should be interests which are directly and immediately likely to be affected and not interests which may hypothetically and remotely be affected by the sale."

Now, the learned counsel for the respondents wants to make a distinction. Here the petitioner, except obtaining decrees against the judgment debtor, did not even attach the properties. He did not pursue his execution applications. He was not at all entitled to rateable distribution, if he filed application in the execution proceedings. There is apparently some force in the argument advanced by learned counsel for the respondents. Still, I think the petitioner has got locus standi to file the application under O. XXI, R. 90 C.P.C. He filed execution application in the suits but he did not pursue them, as he failed to comply with the orders of the court. But before the decree-holder in O. S. 105 of 1950 brought items 1 to 23 for sale the decreeholder also attached some items of property which are admittedly in the possession of the petitioner which he purchased from the judgment debtor long before the attachment effected by the decreeholder, the second respondent herein. He is, therefore, vitally interested in setting aside the sale. If the second respondent decreeholder is not able to realise his decree amount by sale of items 1 to 23, he has got to bring the attached properties which are now in the possession of the petitioner for sale for the balance of the decree amount. The petitioner is, therefore, vitally interested and in his own interest, he must set aside the sale on the grounds of illegality and fraud. Now it the property is sold for valuable consideration and the sale proceeds are enough to satisfy the decree amount, then the property of the petitioner would be safe from harassment or further execution proceedings. Therefore I feel that the petitioner is interested in setting aside the sale. His interests are not hypothetically and remotely affected by the sale but are directly and immediately affected by the sale.

The question that follows for consideration is whether the property is sold for proper consideration. It is an admitted fact that items 1 to 23 were sold for a sum of Rs. 1505 subject to a mortgage. The first respondent herein, who purchased the properties, did not pay the amount immediately. She mortgaged one item of property under Ex. A-1 for a sum of Rs. 2800 and then she paid the sum of Rs. 1505 the sale price, fetched in court auction for items 1 to 23. Learned counsel for the petitioner contended that, when item 6 has fetched Rs. 2800 it is impossible to hold that the items 1 to 23 have been sold for an adequate price. The learned District Judge did not consider whether the property was sold for adequate consideration. He stated that no one would be prepared to purchase the properties in court auction, paying the market value for the properties. Further, there seems to be some unseemly haste in bringing the properties to sale. And the properties were purchased by the wife of the judgment debtor. There is no evidence about the exact market value of the properties brought to sale in the court auction. The order of the District Judge cannot therefore be sustained.

(10) In the result, the civil miscellaneous appeal is remanded to the file of the District Court, Tirunelveli, for fresh disposal according to law and in the light of the observations contained in this judgment.

EI/LGC/DVC (11) Case remanded.

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စီရင်ထုံးစာမျက်နှာ၁၃၃တွင်၊တရားရုံးချုပ်ကအောက်ပါအတိုင်းသုံးသပ်သည်-

“သို့ရာတွင်လျှောက်လွှာ၌အရောင်းကြော်ငြာရာတွင်ဖြစ်စေ၊ရောင်းချရန်ဆောင်ရွက်ရာတွင်ဖြစ်စေချွတ်ယွင်းခြင်းသို့မဟုတ်လိမ်လည်ခြင်းအပေါ်အခြေခံရမည်။အေအိုင်အာ၊၁၉၂၆၊ကာလကတ္တား၊၈၂၉အမှုကိုရည်ညွှန်းသည်။”

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စီရင်ထုံးစာမျက်နှာ၁၃၃တွင်၊တရားရုံးချုပ်ကအောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

“ထို့အပြင်လျှောက်လွှာသည်အကြီးအကျယ်ထိခိုက်နစ်နာရကြောင်းလည်းပေါ်လွင်ထင်ရှားစေရမည်။အေအိုင်အာ၊၁၉၄၅၊ပီစီ၊၁၇၈အမှုကိုရည်ညွှန်းသည်။”

AIR (32) 1945 Privy Council 178

(FROM MADRAS)

30th July 1945

LORD PORTER, LORD GODDARD, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT.

Sri Raja bommadevara Naganna Naidu Bahadur indar Garu--Appellant.

                                     V.

Sri Raja Bommadevara Venkatravulu Naidu Bahadur Zamindar Garu and another-Respondents.

Privy Council Appeal No. 8 of 1942.

(a) Civil P.C. (1908), 0.21. R.90 -Requirements to be proved for setting aside sale under indicated- Nature of proof.