Decided on March 21,1900

SRINATH RAY Respondents


Francis W Maclean, K C I E C J - (1.) This is an appeal by the representatives of the judgment-debtors against the decision of the Subordinate Judge of the 24-Pergunnahs, dated the 17 of April 1899, refusing to set aside the sale of certain property which had been sold under a decree, and which was purchased by the respondents, who were themselves the decree-holders, but who had liberty to bid.
(2.) The facts may be shortly stated. The decree for sale was dated the 13 of February 1896, and was made in a suit to enforce an equitable mortgage. The property in due course of execution was ultimately sold, and, as I have already said, the decree-holders became the auction-purchasers. The sale was confirmed on the 22 February, 1897. On the 8 of September 1898, the decree was at the instance of some of the defendants set aside under Section 108 of the Civil P. C.. On the 22 February, 1899, the present application was made by the representatives of the judgment-debtor and the learned Subordinate Judge refused to set aside the sale. I may add, though in my opinion it does not affect the matter for present purposes, that on the 16 of December 1899, the same decree was again made in the presence of all the parties.
(3.) Upon this state of facts two questions have been argued, first that the case does not fall within the provisions of Section 244 of the Civil P. C., and that the present appellant ought to have instituted a separate and independent suit to set aside the sale, and, secondly, that as the sale has been confirmed, it cannot now be set aside. Upon the first question the tendency of the decisions in this Court, a tendency which has met with the approval of the Judicial Committee of the Privy Council, is to place a wide and liberal construction on Section 244 of the Code, and not to drive the parties to an independent suit, unless the case be clearly outside the scope and purview of the section. In support of this view I may refer to the cases of Doyamoyi Dasi V/s. Sarat Chunder Mozoomdar (1897) I.L.R., 25 Cal, 175; Maharani Beni Prosad Koeri V/s. Lakhi Rai (1898) 3 C.W.N., 6; and to Durga Charan Mandal V/s. Kali Prasanno Sarkar (1899) I.L.R., 26 Cal, 727. These cases appear to me to establish that the case falls within Section 244 of the Code, as I consider it does.;

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