# SMT. LAXMI DEVI v. SETHA1'1 MUR:AND KANWAR & TWO 01HERS

- **Citation:** [1965] 1 S.C.R. 726
- **Court:** Supreme Court of India
- **Decided:** 1964-10-09
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J. R. MUDllOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-laxmi-devi-v-setha1-1-mur-and-kanwar-two-01hers-3388
- **Pages:** 11

## Headnote

Transfer of Property Acr (4 of 1882), ss. 2(d), 5 and 100-Aucrion
sale in exccu1io11 of decree-I/ rrans/er of properry-Charge-1/ enforceable against auction purchaser.
Code of Civil Procedure (Acr 5 of 1908), 0. 21, r. 9f>-Subsranrial
Injury-What iJ·-Application to set aside auction sale--Averment regarding substanticll injury-1Vecessity for.
The 2nd respondent obtained a money decre<> against the 3rd respondent and ir e'\ccution of that decree brought the suit property to sale and
the appell;int μurchase<l it.
Pripr to the sale, however, there was a decree,
in favour o( the 1st respondent, for arrears of maintenance, and a charge
in favour of the 1st respondent was declared over the properties of the
3rd responJent, including the suit property.
The !st respondent therefQre
filed an application under 0. 21, r. 90 of the Code of Civil Procedurt,
1908, to set aside the sale.
·rne Executing Court dismissed the application
holding that she had failed to show any substantial injury.
The order was
set aside by the High Court on appeal.
Jn the appeal to the Supreme
Court, it \vas con1cndcd that the application should be dismissed as : (i)
there \\'as no allegation of substantial injury in the application, and (ii)
in fact the Isl respondent had not suffered any substantial injury.
HELD : The appeal should be allowed.
While s. 5 of the Transfer of Property Act, 1882 defines "transfer of
property" only as a transfer effected by act of parties inter l'ivos, s. 2(d)
provides that save as provided by Chapter IV of the Act, the provisions of
the Act are not deemed to affect transfers in execution of decrees. Since
the positive provision in s. 2(d) prevails over s. 5, Chapter IV and s. JOO
in that Chapter would apply to auction sales in execution of decrees. Section 100 provides that a charge shall not be enforced against any property
in the hands of a person to whom the property has been transferred for
consideration and '"-'ithout notice of the charge.
The result would be
that as a consequence of the material irregularity in not referring to the
char~e in favour of the 1st respondent in the proclamation of sale under
0. 21. r. 66 of the Civil Procedure Code, 1908, the !st respondent would
not be able to enforce the charge against the suit property purchased by
the appellant in auction sale.
When injury is thus implicit in the irregularity it would be too technical to dismiss the application oo the ground
that there was no express avcrrncnt of substantial injury as required by the
provi<o to 0. 21 r. 90(1) of the Code.
But the application should however be dismissed, because the injury suffered by the 1st respondent was
not in fact a substantial injury.
There were other properties suhicct to
the charge and they would be available to meet all her le~itimate claims by
way of maintenance. (731 C..D, G; 732 B; 733 E-0; 734 E-F; 735 B-F, HJ
Nawa/ Kishore v. The Municipal Board, Agra, 1.L.R. (1943) AIL
4S3 (F.B.), R. L. Nanadkeo/var v. Sultan Jahan, l.L.R. 31 Pat. 722 and
A
B
c
D
E
F
G
H
LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.J.)
727
A
Munna Singh Allah Singh v. Wasti Ram Saraf and others, A.LR. 1960
Punj. 2%, approved.
Arumi//i Surayya v. Pinisetti Venkataramanamma and others, A.I.R.
1940 Mad. 701 and Creot v. Ganga Ram Goo/ Raj, l.L.R. [1937) 1 Cal.
203, overruled.
OVIL APPELLATE JURISDICTION; Civil Appeal No. 247 of
B
1962.
Appeal from the judgment and order dated July 29, 1960,
of the Rajasthan High Court in D. B. Civil Misc. Appeal No.
54 of 1957.
Bishan Narain, Amar Chand Inani and B. P. Maheshwari,
c
for the appellant.
·
B. D. Sharma, for respondent No. 1.

## Text

726
SMT. LAXMI DEVI
v.
SETHA1'1 MUR:AND KANWAR & TWO 01HERS
October 9, 1964
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH AND J. R. MUDllOLKAR JJ.)
Transfer of Property Acr (4 of 1882), ss. 2(d), 5 and 100-Aucrion
sale in exccu1io11 of decree-I/ rrans/er of properry-Charge-1/ enforceable against auction purchaser.
Code of Civil Procedure (Acr 5 of 1908), 0. 21, r. 9f>-Subsranrial
Injury-What iJ·-Application to set aside auction sale--Averment regarding substanticll injury-1Vecessity for.
The 2nd respondent obtained a money decre<> against the 3rd respondent and ir e'\ccution of that decree brought the suit property to sale and
the appell;int μurchase<l it.
Pripr to the sale, however, there was a decree,
in favour o( the 1st respondent, for arrears of maintenance, and a charge
in favour of the 1st respondent was declared over the properties of the
3rd responJent, including the suit property.
The !st respondent therefQre
filed an application under 0. 21, r. 90 of the Code of Civil Procedurt,
1908, to set aside the sale.
·rne Executing Court dismissed the application
holding that she had failed to show any substantial injury.
The order was
set aside by the High Court on appeal.
Jn the appeal to the Supreme
Court, it \vas con1cndcd that the application should be dismissed as : (i)
there \\'as no allegation of substantial injury in the application, and (ii)
in fact the Isl respondent had not suffered any substantial injury.
HELD : The appeal should be allowed.
While s. 5 of the Transfer of Property Act, 1882 defines "transfer of
property" only as a transfer effected by act of parties inter l'ivos, s. 2(d)
provides that save as provided by Chapter IV of the Act, the provisions of
the Act are not deemed to affect transfers in execution of decrees. Since
the positive provision in s. 2(d) prevails over s. 5, Chapter IV and s. JOO
in that Chapter would apply to auction sales in execution of decrees. Section 100 provides that a charge shall not be enforced against any property
in the hands of a person to whom the property has been transferred for
consideration and '"-'ithout notice of the charge.
The result would be
that as a consequence of the material irregularity in not referring to the
char~e in favour of the 1st respondent in the proclamation of sale under
0. 21. r. 66 of the Civil Procedure Code, 1908, the !st respondent would
not be able to enforce the charge against the suit property purchased by
the appellant in auction sale.
When injury is thus implicit in the irregularity it would be too technical to dismiss the application oo the ground
that there was no express avcrrncnt of substantial injury as required by the
provi<o to 0. 21 r. 90(1) of the Code.
But the application should however be dismissed, because the injury suffered by the 1st respondent was
not in fact a substantial injury.
There were other properties suhicct to
the charge and they would be available to meet all her le~itimate claims by
way of maintenance. (731 C..D, G; 732 B; 733 E-0; 734 E-F; 735 B-F, HJ
Nawa/ Kishore v. The Municipal Board, Agra, 1.L.R. (1943) AIL
4S3 (F.B.), R. L. Nanadkeo/var v. Sultan Jahan, l.L.R. 31 Pat. 722 and
A
B
c
D
E
F
G
H
LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.J.)
727
A
Munna Singh Allah Singh v. Wasti Ram Saraf and others, A.LR. 1960
Punj. 2%, approved.
Arumi//i Surayya v. Pinisetti Venkataramanamma and others, A.I.R.
1940 Mad. 701 and Creot v. Ganga Ram Goo/ Raj, l.L.R. [1937) 1 Cal.
203, overruled.
OVIL APPELLATE JURISDICTION; Civil Appeal No. 247 of
B
1962.
Appeal from the judgment and order dated July 29, 1960,
of the Rajasthan High Court in D. B. Civil Misc. Appeal No.
54 of 1957.
Bishan Narain, Amar Chand Inani and B. P. Maheshwari,
c
for the appellant.
·
B. D. Sharma, for respondent No. 1.
The Judgment of the Court was delivered by
.
Gajendragadkar C.J.
This appeal arises out of an appliD cation ·made by respondent No. 1, Smt. Mukand Kanwar,
challenging the validity of an auction sale held on the 14th May,
1954 in execution of a money decree passed in favour of Ratan
Lal Dani, Secretary,
Hindu
Charitable Aushdhalaya, Ajmer,
respondent No. 2, and against Umrao Mal, respondent No. 3.
The property sold at the auction sale is "old Daikhana" at Ajmer.
E On the 24th June, 1950, Umrao Mal who was the owner of the
property, mortgaged it to the appellant Laxmi Devi. Later, respondent No. 2 obtained a money deoree
again~t respondent
No. 3 for a large amount, and in execution of this money decree
he brought the property in question to sale.
Auction sale was
accordingly held on the 14th May, 1954, and the appellant purF chased the property subject to the pre-existing mortgage in her
fa<our.
The amount due under the mortgage was Rs. 33,264
and as auction-purchaser, the appellant paid Rs. 2,800 whereby
she purchased the equity of redemption vesting in respondent
No. 3, the judgment-debtor. It is the validity of this sale that is
G challenged in the present proceedings.
Long before the mortgage was executed, respondent No. 3
had executed in favour of his mother, respondent No. l, a document whereby her maintenance was guaranteed.
This document
had created charge over certain properties belonging to respondent No. 3.
On the strength of this document, respondent No. 1
H sued respondent No. 3 (civil suit No. 233 of 1952). In this
suit, she claimed arrears of maintenance and asked for a declaration that the properties specified in the plaint, which were the
728
SUPREME
COURT
REPORTS
[1965] I S.C.R.
same as the properties covered by the previous agreement between
A
the parties, were subject to a charge for her maintenan~. The
trial Court gave her a decree for arrears of maintenan~, but
declined to make the declaration a~ to charge claimed by her. This
decree was pronounced on the 3 lst July, 1952.
Agains't this
decree, respondent No. I preferred an appeal (No. 80 of 1952)
B
to the Judicial Commissioner, Ajmer.
Her appeal succeeded and
the charge over the properties was declared in her favour.
This
decision was pronounced on the 10th February, 1954.
After the auction sale was held on the 14th May, 1954, it was
challenged by two separate applications, one was made by respondent No. 3, the judgment-debtor, on the 28th June, 1954, and the
C
other by respondent No. I on the same date.
Both these applications were made under 0. 21 r. 90 of the Code of Ciyil Procedure.
The application made by respondent No. 3 was dismissed on the
30th April, 1955, while the application made by respondent No. 1
went to a trial.
The Executing Court which heard this application
D
tried three .issues.
The. first issue was whether the sale had been
vitiated by' any irregularity as required by 0. 21 r. 90.
The
second was whether respondent No: 1 was a person whose 'intere.'5
had been affected by the impugned sale; and the third was whether
'the irregularity alleged by respondent No. 1 had caused substantial
}oss to her.
All these issues were decided in favour of respondent
E
No. I.
In the result, the impugned sale was set aside on the 4th
'May, 1955.
The appellant challenged the correctness of this decision befor~
~he Judicial Commissioner, Ajmcr.
It was urged on behalf of
.the appellant that the application made by respondent No. 1 did
F
not satisfy the requirements of 0. 21 r. 90 of the Code inasmuch
as appropriate allegations had not been made in the application
showing that substantial injury had been suffered by respondent
~o. 1 by reason of the irregularities which, according .to her, had
vitiated the said sale.
This plea was rejected by the Judicial
Commissioner.
It was then urged that respondent No. 1 was not
G
competent to make the said application.
The Judicial Commissioner did not accept even this plea. . The last argument which
was pressed before the Judicial Commissioner was that the finding
recorded by the Executing Court that respondent No. 1 had suffered
iubstantial injury was not justified, and that in fact,· the appellant
had no opportllllity to lead her evidence on that issue, because all
H
the three issues on which the Executing Court had made its findings had been framed by it at a very late stage of tho proceedings.
LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.l.)
7 29
A This plea was upheld by the Judicial Commissioner, and so, he
set aside the finding of the Executing Court on that issue and sent
the case back for disposal in accordance with law, with a direction
that the issue as to substantial injury should be tried afresh.
This
order was pronounced on the 26th August, 1955.
B
After remand, the Executing Court considered the issue as to
c
substantial injury and held that respondent No. 1 had failed to
show any substantial injury.
As a result of this finding, it ordered
that her application under 0. 21 r. 90 should be dismissed, and
the sale should be confirmed.
This order was pronounced on the
27th April, 1957.
Aggrieved by this order, respondent No. 1 preferred an appeal,
and since the High Court of Judicature at Rajasthan had then
come into existence, her appeal was heard by the said High Court.
The High Court has held·that the Executing Court was in error in
coming to the concluilion that respondent No. 1 had not proved
D substantial injury.
The contentions raised by the appellant in
support of the ultimate decision reached by the Executing Court
wece rejected by the High Court, .and as a result, the application
made by respondent No. 1 was allowed and the impugned sale set
aside.
This appellate .order was pronounced on the 29tli July,
1960. It is against this order that the appellant has come to this
E Court with a certificate granti:d by the said High Court.
Thus,
it will be noticed that the sale which took place on the 14h May,
1954 still remains to be confirm!l(i.
On behalf of the appellant, Mr. Bhasin Narain has conceded
that as a person holding a charge over the property sold at the
11
auction sale, respondent No. 1 can rely on s. 100 of the Transfer·
Of. Property Act and as such was competent to make the application
under 0. 21 r. 90. Order 21, r. 90( 1) provides, inter aliti. Qi.at
where any immovable property has been sold in execution of a
decree, any person whose interests are affected by the sale, may
apply to the Court to set aside the sale on the ground of a material
G irregularity or fraud in publishing or conducting it.
There is a
proviso to this rule which is relevant for our purpose. This
proviso lays down that no sale shall be set aside on the ground of ·
irregularity or fraud unless upon the facts proved; the Court is
sati,<;fied that the applicant has sustained substantial injury by
reason of such irregularity or fraud.
While conceding that
H
i'CllpOndent No'. 1 was entitled to make an application as a person
whose· interests were affected by the impugned sale, Mr. Bishu
N ilrain argues that if the application made by her is properly
730
SUPREME COURT REPORTS
(1965] l S.C.R.
construed, it would appear that the material allegations of fact
A
which must be made by the applicant invoking 0. 21 r. 90(1 ),
have not been made; and so, the said application should be dismissed
on that ground alone. On the merits, he contends that there is no
evidence on which a finding can be made in favour of respondent
No. 1 that she has suffered substantial injury by reao;on of any
8
irregularity committed in the conduct of the sale.
The application
made by respondent No. 1 is
no
doubt
somewhat defective, because it does not, in terms, allege that as a
result of the irregularity alleged in the application,
respondent
No. 1 has suffered substantial injury. The application avers that before the impugned auction .sale was held, a proclamation had been
C
issued, but the said proclamation did not refer to the charge in
favour of respondent No. 1 which had already been recognised by
decree in a suit between respon~ent No. 1 and respondent No. 3
and that naturally attracts the provisions of 0. 21 r. 66 of the Code.
Order 21 r. 66(2) (e) requires that the proclamation shall be
D
drawn up and shall specify as fairly and accurately as possible
any incumbrance to which the property sought to be sold is liable.
The failure to mention the charge in favour of respondent No. 1
would, therefore, constitute an irregularity within the meaning of
0. 21 r. 90( I).
This position is also not in dispute.
The contention, however, is that the application made by resE
pondent No. 1 does not show what injury she has s?.dfered as a
result of the said irregularity, and that, it is argued, constitutes a
serious infirmity in the application which would entail its dismissal.
On the other hand, Mr. Sharma for respondent No. 1 has relied
on the fact that the auction sale would virtually wipe out or extinF
guish the rights which have accrued to respondent No. 1 by virtue
of the charge declared by a decree in her favour, and he has
suggested that the legal consequence flowing from the fact that
the auction sale has been held without notice of the charge in
favour of respondent No. 1 itself constitutes substantial injury to
the interests of respondent No. I. This argument is ba.sed on the
G
latter part of s. 100 of the Transfer of Property Act. We will
presently refer to this provision.
At this stage, it is enough to
state that if Mr. Sharma is right in contending that an auction sale
of immovable property which has followed the proclamation issued
under 0. 21 r. 66 in which no reference to a charge is made,
materially affects the rights of the charge-holder, some injury
H
would automatically flow from the irregularity alleged in the
application filed by respondent No. 1, and so, it would not be
I
•
LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.J.)
731
A appropriate to hold that the said application should be dismissed
on the ground that no substantial injury .has been alleged as
required by the proviso to 0. 21 r. 90( 1).
It is true that before an application made under O. 21 r. 90
can succeed, the applicant has to show that the impugned sale was
B vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that
he should show that in consequence' of the said irregularity or fraud
he" had sustained substantial injury. Therefore, Mr. Bishan Narain
is right when he contends that the application made by respondent
No. 1 ought to contain an allegation in regard to the material
C irregularity as well as an allegation as to substantial injury.
But,
in our opinion, in a case like the present, where substantial injury
is alleged to be implicit in the material irregularity set out in the
application, it would be too technical to hold that the application
should be dismissed on the preliminary ground that no specific
or express averment has been made as to substantial injury sufferD
ed by respondent No. 1.
Now, in dealing with the question as to whether respondent
No. 1 can be said to have alleged that she has suffered substantial
injury by reason of the fact that she has alleged a material irregularity which, in law, necessarily leads to substantial injury, it is
E necessary to consider the question as to whether the latter part of
s. 100 of the Transfer of Property Act applies to the present case.
Section 100 deals with charges, and it provides when a person
can be said to have a charge on the property; and adds that ali the
provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
It is common
F ground that respondent No. 1 can claim to be charge-holder as
defined by s. 100.
That takes us to the latter part of s. 100.
This part provides,
inter alia, that save as otherwise expressly provided by any law
for the time being in force, no charge shall be enforced against any
G property in the hands of a person to whom such property has been
transferred for consideration and without notice of the charge.
Mr. Sharma contends that' the auction-purchaser holds the property as a result of the auction sale, and in that sense, the property
must be held to have been transferred to him.
He adds that the
charge· was not notified in the proclamation, and so, the auctionH
purchaser has no notice of the charge, and the sale is undoubtedly
supported by consideration. In other words, the case of the appellant directly fa!Is under this part of s. 100, and so, respondent
732
SUPREME COURT REPORTS
[l 965] I S.C.R.
No. 1 would not be able to enforce her charge against the property
A
purchased by the appellant at the auction sale.
That, according
to him, constitutes substantial injury.
This argument raises the question as to whether the relevant
provision of s. 100 takes in the cases of auction purchase at all.
for answering this question, it is necessary to refer to two other
B
provisions of the Transfer of Property Act. Section 2(d) provides
that nothing herein conta:ncd shall be deemed to affect, save as
provided by s. 57 and Chapter IV of this Act. any transfer by
operation of law or by, or in execution of, a decree or order of
a Court of competent jurisdiction.
The effect of this provision
is that the provisions of the Transfer of Property Act will not apply
to any transfer by operation of law or by. or in execution of, a
decree or order of a Court of competent jurisdiction.
This provi<ion is clear and emphatic.
It says that nothing in the Transfer
c
of Property Act will apply to the transfers just indicated; and that
would naturally take in tbe whole of s. I 00.
But there is an
D
exception made to this provision bys. 2(d) itself by the saving
!11ausc, and this exception covers cases provided by s. 57 and
Chapter JV.
Chapter IV deals with mortgages
of immovable
property and charges. and includes sections 58 to I 04.
Section
I 00, therefore, falls within Chapter IV; and the result of the
~aving cluuse is that s. 100 would apply to transfers by operation
of law.
There is, therefore, no doubt that if the question as to
the applicability of the latter part of s. 100 to cases of auction
sales had to be determined on!y by reference to s. 2(d), the
answer would clearly be in favour of such applicability.
E
It is true that when s. 2 ( d) was originally enacted, the latter
F
part of s. 100 was not included in the Transfer of Property Act;
this was added in 1929 'by s. 50 of Act 20 of 1929.
That, however, would make no difference to the interpretation of the relevant
claus.: in s. 2 ( d).
The fact that the saving clause included in
~. 2(d) as it was originally enacted, could not have taken in the
latter pan of s. I 00, makes no difference to its construction, beG
cause as soon as the latter provision was added to s. I 00, it became
a part of the provisions contained in Chapter IV and automatically
fell within the terms of the saving clause. If the legislature had
intended that the provision. added to s. JOO in 1929 should not
fall within the saving clause, an appropriate provision would have
been made by amending s. 2(d) in that behalf. Therefore, s. 2(d)
H
by itself clearly supports Mr. Sharma's contention that the
appellant who is an auction-purchaser would be able to claim
LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.J.)
733
A immunity against the enforcement of the charge in favour of respondent No. 1 by virtue of the provisions contained in the latter
part of '· 100.
This p0sition, however, has become somewhat complicated by
reason of ihe provisions contained in s. 5 of the Transfer of
.B .Property Act.
Section 5 provides, inter alia, that in the following sections "transfer of property" II\eans an act by which a living
person conveys property, in present or in future, to one or more
vther living persons.
In other words, in terms, the definition of
.the expression "transfer of property" as used in all the sections of
the Transfer of Property Act is intended to take in transfers effected
C
by acts of parties inter vivos, and an auction-sale clearly is not
imch an act.
Section 5 would,
therefore,
appear to exclude
auction sales from the purview of s. 100 altogether.
This result
would appear to be consistent with the provision in the preamble
of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define and amend certain
I> parts of the law relating to the transfer of property by act of
parties. That is the position which emerges from the reading of
'· 5 couplod with the preamble; and that naturally raises the quC'-
tiOR as to how to reconcile these two inconsistent positions.
In our opinion, the positive provision contained in s. 2 ( d)
E inust prevail over the definition of "transfer Cf property" prescribed
by s. 5. No doubt, the purpose of the definition is to indicate the
i::lass of transfers to which the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind
cannot over-ride the clear and positive direction contained in the
specific words used by s. '2 ( d). As we have already seen, the
J' result of the saving clause enacted by s. 2 ( d) is to emphasise the
fact that the provisions of s. 57 and those contained in Chapter IV
must apply to transfer by operation of law.
Such a positive provision cannot be made to yield to what may appear tu be the effect
of the definition prescribed by s. 5, and so, we are inclined to hold
G that notwithstanding the definition prescribed by s. 5, the latter
part of s. 100 must be deemed to include auction sales.
This question has been con.sidered by our High Courts on
several occasions, and, on the whole, the majority view appears to
be in favour of the conclusion which we have just indicated.
In
Nawal Kishore V· The Municipal Board, Agra,('), this question
JI was referred to a Full Bench of the Allahabad High Court, because
there appeared to be a conflict between two !Jrevious decisions of
-(~ I.LR. (1943] All. 453.
734
SUPREME COURT REPORTS
[1965) I S.C.R.
Division Benches of the said High Court on this point.
These
two decisions were Raj Indra Narain v. Muhammed Ismail('),
and Municipal Board, Kmzpore v. Roop Chand Jain('). In the
first decision, the Allahabad High Court had taken the view that
auction sales do not fall within the purview of the latter part of
~. I 00, while in the latter case, a contrary view had been accepted.
The Full Bench preferred that lotter view to the former. Since this
Full Bench decision was pronounced in the Allahabad High Court,
auction-purchasers have been consistently held to fall under the
latter part of s. 100.
It has been held by the Full Bench that
when the relevant clause in the latter part of s. 100 speaks of any
property in the hands of person to whom such property has been
transferred, the concept of transfer is wide enough to include
transfers effected by acts of parties as well as transfers effected by
operation of Jaw.
The same view has been accepted by the Patna
High Court in R. L. Nanadkeolvar v. Su/Ian Jelzan( 3 ), and by the
Punjab High Court in Manna Singh Allah Singh v. Wasti Ram
Saraf and Others('). The decision of the Madras High Court in
Arumilli Surayya v. Pinisetti Vl'nkataramanamma and Ors.(•)
and the decision of the Calcutta High Court in Creel v. Ganga
Ram Goal Raj, ( 6 ) which appear to support the contrary view do
not, in our opinion, correctly represent the true legal position in
A
B
c
D
this matter.
Therefore, we must <lea! with the present appeal on
the basis that as a result of the failure of the proclamation to refer
E
to rhe charge in favour of respondent No. I, she would not be able
to enforce her charge against the property purchased by the appellant by auction sale; and that means that the impugned sale ha'
been conducted in a materially irregular manner and as a consequence of the said irregularity, some injury has resulted to respondent No. I.
'
That raises the question as to whether the said injury can be
said ro amount to substantial injury within the meaning of proviso
to 0. 2 I r. 90( 1); and this inevitably would be a question of fact.
The High Court appears to have held that as soon as it is shown
that the charge would become unenforceable against the appellant
auction-purchaser by virtue of the provisions of s. I 00, it follows
as a matter of law that respondent No. 1 has suffered substantial
injury, and so, the impugned sale must be set aside.
We are not
prepa;red to accept this view.
We do not think it can be reason-
(I) I.LR. [1939) All. 885.
(3) l.L.R. (t952) 3t Pat. 722.
('J A.l.R. 1940 Mad. 7v1.
(2) I.LR. (t940] All. 669.
(4) A.l.R. t960. Punj. 296.
(6) I.LR. [1937] t Cal. 203.
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LAXMI DEVI v. s. M. KANWAR (Gajendragadkar C.J.)
735
A abl,y assumed as a matter of law that in every case where a charge
has become unenforceable against an auction-purchaser by reason
of the fact that it was not shown in the proclamation preceding
the auction sale, it follows that the charge-holder has suffered
substantial injury.
Whether or not the injury suffered by
the
B charge-holder is substantial, must depend upon several relevant
facts.
How many properties have been sold at the auction sale;
how many out of them were the subject-matter of the charge; what
is the extent of the claim which the charge-holder can legitimately
expect to enforce against the properties charged, these and other
relevant matters must be considered before deciding whether or
c not the injury suffered by the charge-holder is substantial. It is
from this point of view that the material facts in the present case
must now be considered.
Properties which are the subject-matter of the charge are five
in number.
Out of these properties, it is property No. 3 alone
D which has been sold at auction sale.
It appears that properties
Nos. 1 and 2 have already ceased to be available to the chargeholder, and so, the consideration of the question as to whether the
injury suffered by respondent No. 1 is substantial, must depend
upon the relative values of properties Nos. 4 and 6. This question
has been considered by the Executing Court when the matter was
· E
sent back to that Court by the Judicial Commissioner and the
Executing Court has made a definite finding that the injury suffered
by respondent No. 1 cannot be said to be substantial.
According
to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims
F against the judgment-debtor, respondent No. 3.
The value of
Property No. 4 is Rs. 1,18,967 whereas the value of property
No. 6 is Rs. 1,25,464. The Executing Court has taken into account
the amount which respondent No. 1 is entitled to claim by way of
maintenance from respondent No. 3, has also borne in mind the
fact that respondent No. 1 is an old lady past 70 years of age, and
G has come to the conclusion that, on the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have
caused substantial injury to her.
In our opinion, it is difficult to
differ from this conclusion; and so, it follows that though respondent No. 1 has been able to show that her charge could not be
enforced against the appellant, it is not shown that this c1rcumsH tance has caused substantial injury to her.
The result, therefore,
is that the requirement of the proviso to 0. 21 r. 90 of the Code
is not satisfied .in the present case.
736
SUPREME COt:RT REPORTS
[1965] l S.C.R.
We ought to add that pending the appeal before this Court,
A
rcs!*Jndent No. 3, Urnrao Mal has died leaving behind him hi~
raothcr respondent No. 1 and his widow, and the estate of Umrao
Mal has devolved on these two widows; and so, respondent No. 1
has now become the owner of part of the properties against which
she would otherwise have been entitled to proceed in execution of
b
ner maintenance decree.
The result is, the appeal is allowed, the order pas;ed by the
High Court is set aside and the application made by respondent
No. I under 0. 21 r. <:'0 is dismissed. There would be no order
Js to costs throughout.
Appeal allowtd. c
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