Jaisri Singh and Others vs Rajendra Nath Misra and Others

Fazl Ali, C.J.—The short facts in this appeal are that though in the sale proclamation the value of the property sold was Rs. 2000 the property was actually purchased by the decree holder for Rs. 1041-7-0. After that the judgment-debtor applied ''to the Court concerned to set aside the sale on the ground that the sale was bad u/s 14, Bihar Money Lenders Act.

This application succeeded in the Court of first instance and the order of that Court was upheld in appeal. The decree-holders have now come up in second appeal. It is not disputed that the sale was bad u/s 14, Bihar Money Lenders Act, but the only point raised is that the judgment-debtors should have preferred an appeal from the order accepting the bid and recording partial satisfaction of the decree and not having done so they cannot raise the question collaterally by making a fresh application u/s 47, Civil P.C.

In my opinion, the principle of constructive res judieata cannot be enforced in the manner in which it is sought to be enforced. If the sale was bad it was open to the judgment-debtors to ask the Court by means of a regular petition to hold that the sale was not binding on the parties.

This was the course followed by the judgment-debtors and I do not see why the executing Court should be held to be not competent to hold that the sale is bad. The point which is raised in this Court does not appear to have been raised in either of the Courts below also.

In these circumstances I would dismiss the appeal, but there will be no order as to costs.

Chatterji J.

I agree.