LAWS(CAL)-1980-6-18

HRISHIKESH SARDAR Vs. DIPEN MITRA

Decided On June 11, 1980
HRISHIKESH SARDAR Appellant
V/S
DIPEN MITRA Respondents

JUDGEMENT

(1.) This is a revisional application which is being heard on notice to opposite parties nos. 1 and 2. Opposite party no.1 is appearing to contest and has filed an opposition. Opposite party no. 2, however, is not appearing though duly served with a notice of this application as per affidavit of service filed by the petitioner.

(2.) The revisional application is directed against an order dated June 11, 1979 passed by the learned Additional District Judge, 7th Court, Alipore, in Misc. Appeal no. 649 of 1978 thereby affirming an order dated November 4, 1978 passed by the learned Subordinate Judge, 3rd Court, Alipore, in Misc. Case No. 23 of 1973. By the orders impugned the two Courts below have concurrently overruled the judgment-debtor petitioner's prayer for setting aside a sale held on March 20, 1973 in Title Execution Case No. 36 of 1970. It is not in dispute that the said sale was confirmed on April 23, 1973. The judgment-debtor filed an application for setting aside the sale on various grounds (set out in his application) under Order 21, rule 90 read with sections 47 and 151 of the Code. The said application was filed on May 2, 1973.

(3.) The short point which has now been raised before us by Mr. Chatterjee appearing on behalf of the judgment-debtor petitioner is that the decree that was put into execution was a preliminary decree in a mortgage suit and not a decree for sale so that the executing court had no jurisdiction to sell the property in execution of such a preliminary decree. Though such a point was not specifically raised before the executing court it appears that such an objection was taken in the grounds of appeal preferred before the learned Additional District Judge. Neither of the two courts below, however, has gone into this aspect at all. To us, however, it appears that there is no answer to this objection raised by Mr. Chatterjee. We have carefully looked into the decree dated May 30, 1970 that was put into execution in Title Execution Case no. 36 of 1970 and in the execution where of the property was sold. There is no manner of doubt that the decree as aforesaid is a preliminary decree in mortgage suit which directed that in default of the payment of the amount adjudged within the time specified ?the plaintiff may apply to the court for a final decree for sale of the mortgage property and on such application being made the mortgage property or sufficient part thereof shall be directed to be sold.?