RADHEY SHYAM Vs. SHYAM BEHARI SINGH
LAWS(SC)-1970-8-18
SUPREME COURT OF INDIA (FROM: ALLAHABAD)
Decided on
August 12,1970
RADHEY SHYAM
Appellant
VERSUS
SHYAM BEHARI SINGH
Respondents
Cited Judgements :-
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SUMALAKSHMI SHENAVA VS. MANGALORE CATHOLIC CO-OPERATIVE BANK LTD [LAWS(KAR)-2014-3-589] [REFERRED TO]
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SAMEER ENGINEERING WORKS VS. DISTRICT COLLECTOR [LAWS(GJH)-2003-9-64] [REFERRED]
R D CEMENTS INDUSTRIES PVT LTD VS. COLLECTOR D M LUCKNOW [LAWS(ALL)-2010-3-20] [REFERRED TO]
GOVIND VITHAL VELGUENCAR VS. VISHNUM GOPAL VELGUENCAR [LAWS(BOM)-1996-6-50] [REFERRED TO]
ISWAR SINGH KRIPAL SINGH AND CO VS. RAJPUTANA TRADING CO LTD [LAWS(CAL)-1972-7-18] [REFERRED TO]
NURUL HODA VS. AMIR HASAN [LAWS(CAL)-1972-7-25] [REFERRED TO]
ASHOK KUMAR BAJPAI VS. RANJANA BAJPAI [LAWS(ALL)-2003-10-10] [REFERRED TO]
HAMID VS. D.M., JYOTIBA PHULENAGAR AND OTHERS [LAWS(ALL)-2006-4-347] [REFERRED TO]
LEELA SHIP RECYCLING PRIVATE LIMITED VS. SOHOM SHIPPING PRIVATE LIMITED [LAWS(CAL)-2019-9-107] [REFERRED TO]
RAJARAM NATHUJI PATHODE VS. MANIRAM SAMBHA KOSE [LAWS(BOM)-1974-3-9] [REFERRED TO]
KALLAPPA VS. MUDAKAPPA PARAPPA CHAKRASALE [LAWS(KAR)-1973-10-9] [REFERRED TO]
GURCHARAN SINGH VS. DARSHAN SINGH [LAWS(P&H)-1991-3-37] [REFERRED TO]
KARUPPUSAMY PILLAI VS. SWAMI SUBRAMANIA CHETTIAR [LAWS(MAD)-1997-8-60] [REFERRED TO]
H.P.FINANCIAL CORPORATION VS. NATIONAL DISC.INDUSTRIES [LAWS(HPH)-1987-12-4] [REFERRED TO]
VARIJAKSHI BHAT VS. STATE OF KARNATAKA [LAWS(KAR)-2008-12-15] [REFERRED TO]
ORISSA TEXTILE MILLS LTD VS. CHINTAMANI SAHU BROTHERS [LAWS(ORI)-1972-9-1] [REFERRED TO]
State VS. Hindo Open Sugar Mills [LAWS(RAJ)-1973-2-1] [REFERRED TO]
P S SATHAPPAN DEAD VS. ANDHRA BANK LTD [LAWS(SC)-2004-10-64] [REFERRED TO]
SHAH BABULAL KHIMJI VS. JAYABEN D KANIA [LAWS(SC)-1981-8-39] [REFERRED TO]
K MUNEMMA VS. J VEERABHADRAIAH [LAWS(APH)-1996-8-101] [REFERRED TO]
V VEERA REDDY VS. KURUVA PULLANNA ALIAS PEDDA PULLANNA [LAWS(APH)-2010-8-101] [REFERRED TO]
KANDURU SAMASUNDARAM VS. B SATYANARAYANA AGARWAL [LAWS(APH)-2004-3-72] [REFERRED TO]
INDRAPURI PRIMARY CO OPERATIVE HOUSING SOCIETY VS. BHABANI GOGOI [LAWS(GAU)-1990-8-6] [REFERRED TO]
UNION OF INDIA VS. JAGAT RAM TREHAN AND SONS [LAWS(DLH)-1996-1-89] [REFERRED]
K. KRISHNASWAMI PILLAI VS. THE KUMBAKONAM CITY UNION BANK LTD. AND ORS. [LAWS(MAD)-1978-4-40] [REFERRED TO]
INSPECTOR GENERAL OF REGISTRATION VS. K.P. KADAR HUSSAIN [LAWS(MAD)-2014-7-17] [REFERRED TO]
K.L.PRAKASH VS. SOUTH INDIAN BANK [LAWS(KER)-2019-3-298] [REFERRED TO]
JAGATGURU SHRI SHANKARACHARYA JYOTISH PEETHADHISWAR SHRI VS. RAMJI TRIPATHI [LAWS(MPH)-1978-11-9] [REFERRED TO]
ANITA INTERNATIONAL VS. TUNGABADRA SUGAR WORKS MAZDOOR SANGH AND OTHERS [LAWS(SC)-2016-7-7] [REFERRED TO]
MALIRAM NEMICHAND JAIN JAIPUR VS. RAJASTHAN FINANCIAL CORPN JAIPUR [LAWS(RAJ)-1974-2-32] [REFERRED TO]
T P TEXTILE WASTE PVT LTD VS. STATE OF U P [LAWS(ALL)-2008-3-211] [REFERRED TO]
ZAKI GHOURI VS. BOARD OF REVENUE [LAWS(ALL)-2014-7-193] [REFERRED TO]
AKHILESH PATHAK VS. STATE OF U.P. AND OTHERS [LAWS(ALL)-2011-12-306] [REFERRED TO]
ROBERT PUNAJI SALVI VS. BOMBAY DIOCESAN TRUST ASSOCIATION PRIVATE LIMITED [LAWS(BOM)-1995-7-12] [REFERRED TO]
MPS GREENERY DEVELOPERS LIMITED VS. STATE OF WEST BENGAL [LAWS(CAL)-2013-9-83] [REFERRED TO]
K L R ATHAPPA CHETTIAR VS. G R RAMASETHU [LAWS(MAD)-1993-3-31] [REFERRED TO]
SAURASHTRA RACHANATMAK SAMITI VS. STATE OF GUJARAT [LAWS(GJH)-2007-1-63] [REFERRED TO]
SARVARIYA EXPORTS LTD. VS. O.L. OF URMI OIL LIMITED [LAWS(GJH)-2008-8-176] [REFERRED TO]
PADIYATH RAGHAVAN VS. P. K. KRISHNAN NAMBIAR [LAWS(KER)-1992-7-58] [REFERRED TO]
SHRICHAND VS. TEJINDER SINGH [LAWS(MPH)-1978-9-7] [REFERRED TO]
NAKUL CHANDRA DUTTA VS. AJIT KUMAR CHAKRABARTI [LAWS(CAL)-1982-3-4] [REFERRED TO]
SURESH CHANDRA DAS VS. CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY [LAWS(CAL)-1980-2-9] [REFERRED TO]
AKHILESH PATHAK VS. STATE OF U P [LAWS(ALL)-2011-11-1] [REFERRED TO]
LAXMAN BALA SURVE VS. PESH BUILDERS [LAWS(BOM)-1996-7-7] [REFERRED TO]
SATYA CHARAN DUTTA VS. SHYAM SUNDAR NANDI [LAWS(CAL)-1978-2-2] [REFERRED TO]
VIDYA BHAN PRAKASH VS. SECOND ADDITIONAL DISTRICT JUDGE MATHURA [LAWS(ALL)-1988-1-8] [REFERRED TO]
MOHANA KUMAR N VS. B L NARASIMHAIAH [LAWS(APH)-1999-12-68] [REFERRED TO]
V T V RANGACHARYULU VS. SRIRAM GNANESWAR [LAWS(APH)-1975-12-31] [REFERRED TO]
STATE BANK OF PATIALA VS. KHOSLA ENGG CO [LAWS(P&H)-1992-12-13] [REFERRED TO]
KHEVINABEN R PATEL VS. JAGDISHCHANDRA J DESAI [LAWS(GJH)-1993-9-35] [REFERRED TO]
SABIRA VS. KAMMILI RAJABABU [LAWS(APH)-2023-1-39] [REFERRED TO]
BHASIN FILM CORPORATION VS. SHALIMAR CINEMA [LAWS(DLH)-1983-1-14] [REFERRED TO]
JAGDISH KUMAR VS. DISTRICT JUDGE BUDAUN [LAWS(ALL)-1997-12-7] [REFERRED TO]
T S B K SHRAMAN MAHARAJ VS. MAYAPUR SRICHAITANYA MATH [LAWS(CAL)-1984-11-10] [REFERRED TO]
H P FINANCIAL CORPORATION VS. HIMACHAL SHODDY MILLS LIMITED [LAWS(HPH)-1998-9-2] [REFERRED TO]
K V BALAN VS. SIVAGIRI SREE NARAYANA DHARMA SANGHOM TRUST [LAWS(KER)-2005-11-41] [REFERRED TO]
RAGHUNATH GOUDA VS. G.D. VENKATESH [LAWS(KAR)-2023-9-58] [REFERRED TO]
SWAROOPANAND SARASWATI VS. SHRI RAMJI TRIPATHI [LAWS(MPH)-1978-11-34] [REFERRED TO]
INDULAL KANAIYALAL YAGNIK VS. PRASANDAS D PATWARI [LAWS(GJH)-1971-11-3] [REFERRED]
SINGHAL TRADE CONTRACTORS PRIVATE LIMITED VS. JAIPUR MUNICIPAL CORPORATION & ANR [LAWS(RAJ)-2014-5-374] [REFERRED]
C RAYAM BABU VS. B K L TRADERS PROPRIETOR B VENKATESWARLU [LAWS(APH)-2010-4-50] [REFERRED TO]
RAMDIL RESORTS PRIVATE LIMITED VS. VIDEOCON INTERNATIONAL LIMITED [LAWS(BOM)-1999-6-54] [REFERRED TO]
KOLAY IRON AND STEEL COMPANY LIMITED VS. OFFICIAL LIQUIDATOR HIGH COURT CALCUTTA [LAWS(CAL)-1996-7-10] [REFERRED TO]
United Bank of India VS. Official Liquidator [LAWS(CAL)-1996-7-37] [REFERRED TO]
P L V GIRI VS. A SUBRAMANIAM [LAWS(MAD)-1991-12-32] [REFERRED TO]
SOMASUNDARAM VS. THANGARAJU [LAWS(MAD)-1996-7-103] [REFERRED TO]
K.M.BALASUBRAMANIAN VS. C.LOGANATHAN [LAWS(MAD)-2017-2-84] [REFERRED TO]
DARSHAN SINGH VS. PUNJAB & SINDH BANK [LAWS(P&H)-2002-4-44] [REFERRED TO]
HARBANS KAUR VS. BALWANT KAUR [LAWS(P&H)-1984-3-2] [REFERRED TO]
GORRELA VARALAKSHMI VS. GUNDU RATNAM [LAWS(APH)-2003-1-125] [REFERRED TO]
M KRISHNA VS. ANDHRA PRADESH CO OPERATIVE TRIBUNAL [LAWS(APH)-2005-2-61] [REFERRED TO]
NURUL HODA VS. AMIR HASAN [LAWS(CAL)-1972-7-26] [REFERRED TO]
GOURLAL MITRA VS. HARA SUNDARI PAUL [LAWS(CAL)-1974-6-12] [REFERRED TO]
BOMBAY DIOCESAN TRUST ASSOCIATION PVT LTD VS. PASTORATE COMMITTEE OF THE SAINT ANDREWS CHURCH [LAWS(BOM)-2008-6-130] [REFERRED TO]
JAGDISH KUMAR VS. DISTRICT JUDGE BUDAUN AND QRS [LAWS(ALL)-1997-7-106] [REFERRED TO]
KAMINENI SANTHAKUMARI VS. STATE BANK OF INDIA [LAWS(APH)-1995-12-122] [REFERRED TO]
P VENKATACHALAPATHI VS. G JAYARAMALAH [LAWS(APH)-1996-8-133] [REFERRED TO]
SMT. SUSHILA SINGHANIA AND ORS. VS. BHARAT HARI SINGHANIA AND ORS. [LAWS(BOM)-2017-3-102] [REFERRED TO]
ACHUTHA PRABHU VS. VIJAYA BANK MANI BRANCH BANTWAL TALUK DAKSHINA KANNADA [LAWS(KAR)-2005-2-39] [REFERRED TO]
NAHAN FOUNDRY A LIMITED COMPANY IN HIMACHAL PRADESH VS. MOHANLAL KHIMJIBHAI AND SONS [LAWS(GJH)-1974-3-9] [REFERRED]
SURAJ ENTERPRISES VS. O L OF WOOD POLYMERS LTD [LAWS(GJH)-2004-11-29] [REFERRED TO]
JUDGEMENT
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(1.)The respondent had obtained a decree for Rupees 9000/- and odd against the appellant. In execution proceedings taken out by him, the appellant's one-fourth share in a house was put up for sale and a proclamation setting out the date and hour when the sale would be held was duly issued. The sale, however, was postponed to July 30, 1956 at the instance of the appellant and on his offering to pay a part of the decretal amount. At the auction sale held on the adjourned date the respondent himself purchased the said one fourth share of the appellant for Rs. 8000/-. The appellant filed an application for settine aside that sale under O. XXI, Rule 90 of the Code of Civil Procedure on the ground that contrary to the provisions of Rule 69 of that Order, the notice relating to the adjourned auction sale did not set out the hour when the auction would be held though the original proclamation under which the auction sale was to be held on the earlier date specified both the hour and the date. The appellant contended that the failure to mention the hour contravened Order XXI, Rule 69 and that such a contravention was a material irregularity which vitiated the sale. The objection was overruled by the Execution Court. The appellant thereupon filed an appeal in the High Court where a single Judge upheld the objection holding that the failure to set out the hour amounted to a material irregularity, in consequence whereof the appellant had been prejudiced by the sale having fetched too low a value. On these findings the learned Judge allowed the appeal and set aside the auction sale. Aggrieved by the said order, the respondent filed a Letters Patent appeal under Cl. 10 of the Letters Patent of the Allahabad High Court and Rule 5 of Ch VIII of the Rules of the High Court. A Division Bench of the High Court reversed the order passed by the learned single Judge and allowed the appeal. Following the Full Bench decision of that High Court in Standard Glass Beads Factory v. Shri Dhar, AIR 1960 All 692 = (1960 All WR (HC) 303) (FB) the Division Bench rejected the appellant's contention that no Letters Patent appeal lay against such an order and held that the order of the learned single Judge was a 'judgment' within the meaning of Cl. 10 of the Letters Patent. The Division Bench further held that even assuming that the sale suffered from a material irregularity the learned single Judge was in error in holding that the appellant had established any prejudice to him in consequence of that irregularity. The order of the learned single Judge was reversed and the said sale was upheld. On the High Court refusing a certificate, the appellant obtained special leave from this Court and filed the present appeal.
(2.)In support of the appeal counsel for the appellant raised two points. (1) that the said order of the learned single Judge was not a 'judgment' within the meaning of Cl. 10 of the Letters Patent and hence no Letters Patent appeal could be filed thereunder, and (2) that the said sale suffered from a material irregularity which caused substantial injury to the appellant and was therefore liable to be set aside. Counsel cited certain decisions in support of the contention that the order of the learned single Judge was not a 'judgment' within the meaning of Clause 10 of the Letters Patent. Some of these decisions, however, are under Sections 109 and 110 of the Code of Civil Procedure and Articles 133 and 134 of the Constitution which would have no bearing on the construction of Clause 10 of the Letters Patent. But before we enter into the controversy as to the meaning of the term 'judgment' in Cl. 10 it would be necessary to remember that the respondent having been declared as the highest bidder became the purchaser of the appellant's one fourth share in the said property. No doubt the sale had to be confirmed by the Court under Rule 92 of Order XXI before it could become absolute and in the meantime the appellant could apply under Rule 90 to have it set aside. If the Court, on such an application, were to pass an order setting aside the sale, such an order would clearly affect the rights accrued to by the respondent as a result of the sale. On the other hand, if the application were to be dismissed, such dismissal affects the right of the judgment-debtor under Rule 90. The application under that Rule and the order made thereon, therefore, are not merely procedural matters but are matters affecting the rights of both the auction purchaser and the judgment-debtor. The question is whether such an order setting aside the sale is a 'judgment' within the meaning of Cl. 10 of the Letters Patent.
(3.)At one time the view held by the Allahabad High Court was that no Letters Patent appeal could lie against such an order. Thus, in Piare Lal v. Madan Lal, AIR 1917 All 325 (2) = (15 All LJ 46) it held, following its earlier decision in Muhammad Naimullah Khan v. Ibsanullah Khan, (1892) 14 All 226 = 1892 All WN 14 that no appeal lay under Clause 10 of the Letters Patent from an order of a single Judge of the High Court dismissing an appeal from an order of an executing court on an application under O. XXI, Rule 90. That decision, however, was rendered on a view that Section 104 (2) of the Code debarred even a Letters Patent appeal under Clause10. Subsequently, the High Court abandoned that view and held in Ram Sarup v. Kaniz Ummebani, ILR (1937) All 386 = (AIR 1937 All 165) that Section 104 (2) did not affect Letters Patent appeals from an order thereby falling in line with the other High Courts (see Mulla Code of Civil Procedure, (13th ed.) 452). None of these decisions was on the question whether an order made under O. XXI, Rule 90 was a 'judgment' or not.
(2.)In support of the appeal counsel for the appellant raised two points. (1) that the said order of the learned single Judge was not a 'judgment' within the meaning of Cl. 10 of the Letters Patent and hence no Letters Patent appeal could be filed thereunder, and (2) that the said sale suffered from a material irregularity which caused substantial injury to the appellant and was therefore liable to be set aside. Counsel cited certain decisions in support of the contention that the order of the learned single Judge was not a 'judgment' within the meaning of Clause 10 of the Letters Patent. Some of these decisions, however, are under Sections 109 and 110 of the Code of Civil Procedure and Articles 133 and 134 of the Constitution which would have no bearing on the construction of Clause 10 of the Letters Patent. But before we enter into the controversy as to the meaning of the term 'judgment' in Cl. 10 it would be necessary to remember that the respondent having been declared as the highest bidder became the purchaser of the appellant's one fourth share in the said property. No doubt the sale had to be confirmed by the Court under Rule 92 of Order XXI before it could become absolute and in the meantime the appellant could apply under Rule 90 to have it set aside. If the Court, on such an application, were to pass an order setting aside the sale, such an order would clearly affect the rights accrued to by the respondent as a result of the sale. On the other hand, if the application were to be dismissed, such dismissal affects the right of the judgment-debtor under Rule 90. The application under that Rule and the order made thereon, therefore, are not merely procedural matters but are matters affecting the rights of both the auction purchaser and the judgment-debtor. The question is whether such an order setting aside the sale is a 'judgment' within the meaning of Cl. 10 of the Letters Patent.
(3.)At one time the view held by the Allahabad High Court was that no Letters Patent appeal could lie against such an order. Thus, in Piare Lal v. Madan Lal, AIR 1917 All 325 (2) = (15 All LJ 46) it held, following its earlier decision in Muhammad Naimullah Khan v. Ibsanullah Khan, (1892) 14 All 226 = 1892 All WN 14 that no appeal lay under Clause 10 of the Letters Patent from an order of a single Judge of the High Court dismissing an appeal from an order of an executing court on an application under O. XXI, Rule 90. That decision, however, was rendered on a view that Section 104 (2) of the Code debarred even a Letters Patent appeal under Clause10. Subsequently, the High Court abandoned that view and held in Ram Sarup v. Kaniz Ummebani, ILR (1937) All 386 = (AIR 1937 All 165) that Section 104 (2) did not affect Letters Patent appeals from an order thereby falling in line with the other High Courts (see Mulla Code of Civil Procedure, (13th ed.) 452). None of these decisions was on the question whether an order made under O. XXI, Rule 90 was a 'judgment' or not.
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