Lachuman Pandey vs Dukhi Sahu

There is no substance in this second appeal.

It is admitted that at the time the gale was held the application for execution was barred. The present application is made by the judgment-debtor to set aside the sale on the ground that having sold the property when the application for execution was barred, the Court acted without jurisdiction and that therefore these proceedings were a nullity. I cannot accept this argument.

The Court had jurisdiction to sell the property if the proceeding before it was properly constituted; that is to say, if there were the necessary parties before it to permit it, to adjudicate and it had a right to decide the question of limitation.

Section 184 of the Bengal Tenancy Act is referred to as showing that it was the Court''s duty to decide the point of limitation even if it was not taken by the parties. That is perfectly true and I must assume in this case, until the contrary is shown, that the Court decided the question of limitation and held that the execution could proceed. It had jurisdiction to decide it; and, if unfortunately it decided wrongly, that does not affect his jurisdiction to make the order.

Therefore the sale must stand and the principle of rea judicata must apply to the judgment-debtor''s subsequent application to revive the execution proceedings and to set aside the sale on the ground that the Court proceeded with the execution although it was barred by limitation. If this principle were not applied I do not see what effect can be given to the decision in Mungal Pershad Dichit v. Grija Kant Lahiri [1882] 8 Cal. 51.

The appeal will therefore be dismissed with costs.

Scroope, J.

I agree.