Baijnath Marwari and Others vs Butto Krishna Ray and Others

Saunders, J.—This appeal has been preferred from an order of the Subordinate Judge of Dhanbad allowing an application made under Order 21, Rule 91, Civil P.C., to set aside a sale in execution of a decree on the ground that the judgment-debtors had no saleable interest in it. The facts of the case are these: The appellant obtained a decree for approximately Rs. 19,000 in 1915 against three brothers Manmathanath, Dhirendranath and Debendranath. On 30th April 1932, previous application for execution having proved infructuous, their 12 annas interest in Mouza Hariladih was sold and it was bought by Butto Kristo Ray, respondent in this appeal, for Rs. 14,000.

This man was already a cosharer of the remaining 4 annas share of the village and he is related by marriage to the three judgment-debtors. He deposited a quarter of the purchase money immediately, but instead of paying the balance within two weeks he made an application tinder Order 21, Rule 91, Civil P.C. on the ground that the same property had already been sold to Mt. Nanda Rani Devi, who is the wife of Dhirendra Nath Rai, in execution of another decree. The property had been bought by her for Rs. 492 and the sale was confirmed on 19th January 1932; without any objection on the part of the judgment-debtors. The respondents contended that the sale to Mt. Nanda Rani Devi was benami the actual purchasers having been the judgment-debtors, that Butto Kristo Ray was aware of the previous sale when he purchased the property for Rs. 14,000, and that his application had been made, in collusion, with the judgment-debtors to prevent satisfaction of the decree.

The learned Subordinate Judge without considering the question whether the application of Butto Kristo Ray had been made in good faith or not allowed the application because he considered that he was bound to recognize the validity of the former sale in a case in which the purchaser was not a party. I have no doubt that Butto Kristo Ray was aware of the facts of the previous case and that his application was dishonest. He is, as I have said, related to the judgment-debtors and also a cosharer proprietor of the village. He stated in his application that Mt. Nanda Rani Devi obtained possession of the property after the sale in execution of the other decree and if he knew that, it may be presumed that he knew how she obtained possession.

He omitted to mention in his application when and from whom he had derived his information about the sale, but in his deposition he said that the information had been supplied by two pleaders. These pleaders however were not examined by him in support of that assertion. On the other hand he admitted that the pleader who conducted the proceedings for Mt. Nanda Rani Devi in the other execution case had been living in his house for a long time, in fact since the pleader was sixteen years old, and also had acted as his own pleader in a number of cases in the Gaya. Courts, It can hardly be doubted that this pleader would have told him about the previous sale.

All these circumstances raise, in my opinion an over whelming presumption that Butto Kristo Ray was aware that the property had been sold. Evidently his object was to prevent the property passing into the hands of the decree-holders by bidding against them. Knowing that the sale would not be confirmed he was able to offer more than the property was worth and by making the application he supposed he would escape liability to forfeit his deposit.

I consider therefore that the application was not made in good faith. The rule is for the protection of parsons who innocently and ignorantly purchase valueless property, as was held in the case of Mahabir Prasad v. Duman Das (1881) 3 All 527. It cannot be invoked by a person who has abused processes of the Court for a fraudulent purpose. I would therefore allow this appeal with costs in both Courts and dismiss the respondent''s application. The purchaser not having fulfilled his obligations under Order 21, Rule 85 it will be for the lower Court to decide whether the deposit should be refunded by the applicant and forfeited to Government according to the provisions of Rule 86.

Courtney-Terrell, C.J.

I agree.