Sm. Chitra Devi and Others vs Badri Bisal Bhakat and Others

Harries, C.J.—This is a petition for revision of an order of an appellate court upholding an order of a learned Munsif made u/s 151 of the Code of Civil Procedure.

The decree-holder respondent put up a property for sale in execution of a decree which he held against a judgment-debtor. That property was purchased by the petitioner and the sale was duly confirmed by the court. Later an application was made by the respondent u/s 151 asking that this sale be set aside on the ground that by a mistake the decree holder had sold his own property in execution of the decree. The courts held that such was the case and have set aside the sale.

A point was taken that the proceedings were misconceived and could not take place u/s 151. That I think would be a good objection. But it is pointed out by the court that these proceedings are in the nature of a review of an order made in execution. However it is unnecessary to pursue this point because I am satisfied that the respondent is estopped from putting forward the present contention.

In putting up this property for sale in execution of his decree the respondent represented that the property was property saleable in execution which could be purchased by any person as the property of the judgment-debtor sold in execution. There was a clear representation to that effect and the petitioner acted on that representation and changed the whole of her position by purchasing the property. It appears to me that it is not open to the respondent now to say that what he represented was not the true state of facts. It seems to me that this case is very similar to "a Madras case -- Ramasami Konan Vs. Kulandai Velu Pillai, (1). The lower appellate court distinguished that case on the ground that here the error appeared on the face of the proceedings & relied upon a Privy Council case in ''Taralal Singh v. Sarobar Singh'' 4 C W. N. 533. If of course it appeared on the face of this execution that the respondent was selling his own property, no question of estoppel would arise. But it does not appear on the face of the execution proceedings. On the contrary the execution proceedings showed that the respondent was selling the judgment-debtor''s property. It seems to me quite clear that the respondent is estopped from now alleging the true state of affairs.

The courts below also appeared to have thought that the respondent was illiterate and did not know Bengali. But they have overlooked the fact that the respondent had signed a number of documents in Bengali script and verified them. In any event it appears to me quite clear that the respondent is estopped from contending that the property sold was his and that being so, the orders of the courts below cannot be maintained.

The orders of the courts below are there fore set aside and the application which was made u/s 151 of the CPC to set aside this sale is dismissed with costs here and in the courts below.