under the circumstances, held to be a material irregularity. Further, if there had been an irregularity, the Council held that it ought to have been brought before the Court below, and taken advantage of then. The issue of a notice of sale after the death 5. To set aside an execution for frand, it of the notice required by sec. 481; he has Publication of a sale notice must usually be proved by the officer charged with its (m) An appeal lies from orders under this Where an execution sale was set aside, on Hulse v. Luchmun Dass, Agra R., I. (n) An order canuot be said to have been (0) Where a sale hss been confirmed and the purchaser has obtained a certificate, the interest of the judgment-debtor eeases from the date of sale, becomes vested in the puechaser, and the latter is liable to pay Government revenue from the date of sale, not that of confirmation. Bhairub Chunder Bandopadhya v. Soudamini Debi, I. L. R., C. II. 145. Where there is a sale iu execntion, the latest act of the decree-holder to keep his decree in force is the sale which took place at his instance, not the confirmation of the sale. The Maharajah of Burdwan v. Lackhee Monee Debi and others, S. W. R. VIII. 359. (p) This sets at rest the point on which the Calcutta and Bombay High Courts were at conflict. (See B. L. R., IV. App. 35, and Bom. H. C., V. 83). The former Court held that where a decreeholder caused certain property to be sold by auction in execution of his decree, alleging that it belonged to his judgment debtor, purchased it himself and set up the price against his decree, and it was found the debtor had no interest in the property, no fresh execution could issue against judgment-debtor, and decreeholder could not recover his money. (Nor could he apparently under this section, as there was no one to whom it was paid save himself.-ED.) (q) If the Court omit to order repayment For rulings on sales set aside for other * See n. (b) p. 21. or the execution of any particular kind of such decrees, * and rescind or modify any such declaration. The local Government may also from time to time of pre scribe rules for the transmisson the decree from the Court to the Collector, and for regulating the Power to prescribe rules as to transmission, execution and retransmission of decrees. procedure of the Collector and his subordinates in executing the same, and for retransmitting the decree from the Collector to the Court. Power of Collector as to sale of land in execution of decree. 321. Whenever the execution of a decree has been so transferred the Collector may— (a) sell the property comprised in the decree by public auction, and either in one or more lots as he thinks fit: (b) aflix reasonable reserved price for each lot: (c) adjourn the sale for a reasonable time, whenever he deems the adjournment necessary for the purpose of obtaining a fair price for the property, recording his reasons for such adjournment: (d) buy in the property offered for sale and re-sell the same. Powers of Collector as to execution of certain moneydecrees so transferred, 322. Whenever the execution of a decree not being a decree directing the sale of immoveable property in pursuance of a contract specifically affecting the same, but being a decree for money in satisfaction of which the Court has ordered the sale of immoveable property, has been so transferred, the Collector may either proceed as the Court would proceed under section 305, or if he has reason to believe that the judgmentdebts of the judgment-debtor can be discharged without a sale of the whole of such property, the Collector may (notwithstanding any order under section 304, but subject to such rules as may from time to time be made in this behalf by the Chief Controlling Revenue authority) raise the amount necessary to discharge such debts with interest thereon according to the decree, or, if the decree makes no provision as to interest, then with interest (if any) at such rate as he thinks fit, (a) by letting in perpetuity, or for a term, on payment of a premium equivalent to such amount, the whole or any part of the judgment debtor's immoveable property: or (b) by mortgaging the whole of any part of such property: or (c) by selling part or such property: or tion of the judgment-debtor's right, title, and interest in the property. Bisseswar Pandoy v. Bhagwan Dass, B. L. R., III. 301. This section contains nothing to prevent the purchaser from obtaining possession, when he can, without intervention of the Court. Obhoga Charan Day v. K. C. Ghose S. W. R., XXII. 406. If when a judgment-debtor's right and interests in property are sold, the property is lawfully in the possession of tenants, the proper course is not to dispute their lawful possession and occupation, but to place the purchaser in a condition to receive from them the rents in the place of a judgment-debtor. Uncovenanted Service Bank v. Palmer, N. W. P. 1870, 456. When a claim is made for rent by a purchaser of interest in lands sold under execution, he must prove that the judgment-debtor previously possessed such claim. Trannauth Chatterjee v. Prem Chund Sirkar, Ind. Jur., Ï. 184. (r) Delivery is complete as soon as the steps prescribed herein are taken; any subsequent act of resistance on the part of the claimant does not give the Court a right to interfere in the way provided in sec. 335. A decree-holder obtaining an order for the sale of his judgment-debtor's interest in certain property, and becoming purchaser at the sale, receives a sale certificate going beyond the order; he cannot avail himself of anything in the certificate beyond the order. If, however, he obtains possession according to the certificate, and sells to a bonâ fide purchaser without notice of the difference between the certificate and the order of sale, the latter has a good title. Gouree Kumal Bhuttacharjee v. Surut Chunder Doss Biswas, S. W. R., XXII. 400. A decree for the sale of mortgaged property was attached and sold in execution of a decree, held that the interest in immoveable property thereunder conveyed to the purchaser was immoveable property within the meaning of sec. 316, and that a certificate of sale ought to have been granted to the purchaser. Hari Govind Joshi v. Ram Chandra Pandarary Joshi, B.H.C., 1X. 64. * Sale certificates are instruments declaring an interest in property; and if the value of the interest so declared be one hundred rupees or upwards, the registration of those instruments is compulsory. See Act III. of 1877, M. H. C.R., VI. XI. Mere inaccuracy of language or misdescription will not vitiate a sale certificate; the intention of the parties must be look ed to. Sheikh Maula Bakhsh v. Munshi Kuruck Lal, S. W. R. VII. 245. (s) This section is no bar to a suit where a judgment-creditor sued for a declaration that the certified auction-purchaser of certain immoveable property is merely a trustee for the judgment-debtor, and that the purchase in purchaser's name is made with the intent of defeating or delaying him in the execution of his decree. In such case the decree-holder is at liberty to apply for execution against the property of his judgmentdebtor. Sohun Lall v. Gya Parshad, N. W. P. 1874, 265; Puran Mall v. Ali Khan, I. L. R. A., I. 235. Nor again, where defendant in possession not only denied plaintiff's title, but that of his vendor, whose purchase is clearly fraudulent, being made in collusion with the judgment-debtor to defraud creditors, the section does not prohibit a defendant, under such circumstances, from questioning the plaintiff's title; it provides for the dismissal of a suit brought to question the title of the certified purchaser, but does not prohibit a defendant from questioning that title when the auction-purchaser seeks to oust him. Mirza Khyrat Ali and others v. Mirza Syfullak Khan and others, S. W. R., VIIÏ. 130. Where a mukararidar of land sold to satisfy a debt sues to obtain possession, and the purchase if found to be not bona fide, but for the party in possession, this section is no bar to the suit, the ground of fraud alone giving plaintiff right to question the legality of the sale. Must. Skama Keshi v. Must. Rajkishore, S. W. R., XIV. 179. (t) Benami purchases are so prevalent in India that no presumption against them necessarily can arise except where they are specially barred. The leading case is that of the Privy Council in Musst, Behnus Koer v. Lalla Bahooru Lall and another, M. I. A., XIV. 496. Brij Lall Opadhia was mortgagee in possession of a certain talook. Whilst he was so in possession, the interest of the mortgagor was offered for sale under a decree obtained against him by a creditor, and one Lalla Bahooru Lall became the ostensible purchaser at such sale, and the certificate of sale was granted to him in his own name as the purchaser. Brij Lall Opadhia remained in possession until his death, and after it the present suit was brought by Lalla Babooru Lall against his heir (the present appellant) for the redemption of the talook and possession of it, it being alleged that the mortgage debt has been paid off by the receipt of the profits, and, if not, that he was ready to pay what might remain due. The defence was, that See however S, 273, (d) by letting on farm or managing by himself or another the whole or any part of such property for any term not exceeding twenty years from the date of the order of sale: or (e) partly by one of such modes and partly by another or others of them. For the purpose of managing under this section the whole or any part of such property, the Collector may exercise all the powers of its owner. 323. In the case of a decree for money, if the Collector Procedure of Collector. proposes to proceed under section 322, he shall publish a notice in the language of the district, calling upon all persons holding decrees against the judgment-debtor to notify the same in writing to the Collector within sixty days from the date of such publication. Such notice shall be published by being posted in the Court-house of the Court which made the order under section 304, and at such other places (if any) as the Collector thinks fit. So long as any letting or management under section 322 continues, the judgment-debtor and his representative in interest shall be incompetent to mortgage, charge, lease or alienate the property so let or managed or any part thereof. 324. If on the expiration of the letting or management, the amount necessary to discharge Sale by Collector. such debts in full with the interest (if any) payable thereon has not been raised, the Collector shall notify the fact in writing to the judgment-debtor or his representative, stating at the same time that, if the balance necessary to discharge such debts and interest is not paid to the Collector within six weeks of the date of such notice, the Collector will proceed to sell the said property; and if on the expiration of the said six weeks the said balance is not so paid, the Collector shall sell such property accordingly. 325. Whenever the Sale, &c., to be reported to Court by Collector. Collector sells any property pursuant to the said order of sale, or exercises any of the powers conferred upon him by sections 321 or 322, he shall inform the Court which made such order of the fact of such sale or exercise, and shall render accounts to such Court of his receipts and payments in respect of the said property, and shall hold the balance at the disposal of such Court. Such balance (after deducting therefrom any debts due or liabilities incurred to GovApplication of balance. ernment by the judgment-debtor) shall be applied rateably in discharging the claims of all the decree-holders who have complied with the said notice; the purchase was made by Lalla Bahooru Lall in his own name as a benami purchaser for Brij Lall Opadhia, and with his money, and that the attempt by Lalla Bahooru Lall to set up a title in himself was a fraud. It was decided by the Courts in India that this defence was true in fact; and it was admitted that it must be so treated in dealing with the question to be decided in this appeal, which was, whether, having reference to certain sections of the Code of Civil Procedure, the defence could in law he made available, the only express enactment on the subject in the Civil Procedure Code being that contained in section 316; but, it being contended that there may be inferred from this section, taken in connection with sections relating to the manner of giving possession, a general intention, having for its object to prevent an enquiry between the purchaser de facto and the person for whom he is alleged to have purchased, upon the question, whether the purchase was benami or not; and that effect should be given to that intention. Held, that sec. 316 was clear and definite, and from it there was nothing from which it could be inferred that more was meant than was expressed. That it was confined to a suit brought against the certified purchaser, and to a specific direction as to what should be done in that suit, viz., that it should be dismissed wish costs. That the present suit, which was the converse of that pointed at in the section, was not within the words or scope of it. That no inference, fairly arises from sec. 316, that it was to interfere with benami transactions, or from sec. 299, 300, 301, 303, 318, 319, of an intention to prohibit such transactions. That the inference sought to be made against benami transactions rests entirely on sec. 316, and that, if this clause were absent from the Code, there is absolutely nothing in the other sections from which such an inference could be drawn. The express enactment contains no words to restrain the defence set up; and there was no bar to preclude the enquiry in this suit into the real title. Benami purchases are common in India, and effect is given to them by the Courts according to the real intention of the parties. The Legislature has not, by any general measure, declared such transactions to be illegal, and therefore they must still be recognized, and effect given to them by the Courts, except so far as a positive enactment stands in the way, and directs a contrary course. (u) This does not preclude a person purchasing benami from setting up his title against a person not being the certi* See note fied purchaser, or claiming through him. Musst Shorosutty Dassi v. Gopeesoondary Dassi and others, Marsh., 423. A bona fide purchaser is not prohibited from reconveying, for payment of the purchase money, property sold under a decree to the judgment-debtor. If the latter accept the proposal, this section cannot preclude a contract from arising. Mir Joshi v. Muhammad Ibrahim, Bom. H. C., X. 344. (v) It is the practice of the Indian Courts, and one perfectly consistent with reason and justice, not to give possession under a judicial sale by removing the possession of one who is in possession under an apparently bonâ fide title. If the debtor can assert his title to possession by suit only, the new owner of his title can have no higher claim. The Courts therefore leave the purchaser to assert his title by regular suit. Tarakant Bannerjee - v. Puddoomoney Dasi, M. I. A., X. 476. (w) An order under this section does not decide possession of a third party in the summary way that a decision under Act XIV. sec. 15 does. Jugal Kishor v. Musst. Edun, S. D. A., N. W. P. 265, 296. Date from which possession accrues is, according to Asudoolah v. Sheikh Akbar Ali, S. W. R., VII. 60, date of publication of sale-purchase and proclamation.* (2) Court cannot under this section alter the terms of the decree by authorizing satisfaction by instalments. Sheo Parshad v. Shiva Ram, N. W. P., 1869, 59; Kasi Lal v. Musst. Ameer, ib. 347. See p. 201. (y) The foregoing sections make no reference to suits which may be brought to set aside sales for other reasons than want of saleable interest or irregularity in publication and conduct. It has heen thought expedient to introduce here a few rulings which bear on the subject, as they deal with questions which are constantly arising out of sales of immoveable property. The first bears on the question how far a decree-holder is bound to look behind his decree. The Privy Council, in the case Muddun Thakur v. Kantoo Lal, S. W. R., XIV. 187, say that Where a purchaser found that a suit had been brought against two fathers; that a Court of justice had given a decree against them in favor of a creditor; and that the Court had given an order for this particular property to be put up for sale in the execution, he was perfectly justified, within the principles of the case of Hunooman Parshad Pandey v. Musst. Babooee Munraj Koonweree, in purchasing the property, and paying the purchasemoney bona fide for the purchase of the estate. (o) p. 207. |