Daryai Vs. Sukhai

Daryai vs Sukhai

Type Court Judgment Court Allahabad Decided Dec 31, 1969

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Citation: sooperkanoon.com/448577
Court: Allahabad High Court
Judge: Spankie and ;Oldfield, JJ.
Decided On: Dec 31, 1969
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

Act VIII of 1859, Sections 256, 257 - Act XXIII of 1861, Sections 11, 35--Auction-sale--Order cancelling sale--Appeal--Suit to set aside. - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M....

Key legal issue: Property

Parties & Advocates

Appellant / Petitioner

Daryai

Respondent

Sukhai

Legal References

Reported In: (1875)ILR1All374

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........there would be no difficulty in disposing' of the case. for if the first court's order in execution of decree setting aside the sale was final, there could have been no appeal to the judge, and any order made by him might have been cancelled under section 35 of act xxiii of 1861. but here the order made by the munsif setting aside the sale was not one that could be legally made under section 257 of act viii of 1859, since no material irregularity in publishing or conducting the sale and consequent substantial injury to the objector, by reason of the irregularity, were established. the munsif's order, therefore, setting aside the sale, because the sale price was inadequate, no material irregularity being proved, was in excess of the power granted to him by the section. but it was certainly not an order made, as the district judge assumed in miscellaneous appeal, under section 11 of act xxiii of 1861, because there was no question arising between the parties to the suit which the munsif was called upon to dispose of when lie made his order. if it had been such a question, there could have been no separate suit. but here the auction-purchaser having fulfilled all the conditions of the sale, calls for confirmation, which is refused on no legal ground by the court executing the decree. he had bought the property, and all that was wanting was a confirmation of his title. if no application of a legal character was made to set aside the sale, the court executing the decree, to use the words of the section, shall confirm the sale. as in this case no objection permissible by section 256 had been made, the court executing the decree was absolutely bound to confirm the sale, and as it did not do so but acted in excess of its jurisdiction in refusing to do so, and in cancelling it, it appears that the suit will lie. we are justified in this opinion by a decision of a division bench of this court of the present appeal, no. 1437 of 1876, decided on the 13th march of the present.....

Full Judgment

1. If this matter rested solely on the plea in special appeal there would be no difficulty in disposing' of the case. For if the first Court's order in execution of decree setting aside the sale was final, there could have been no appeal to the Judge, and any order made by him might have been cancelled under Section 35 of Act XXIII of 1861. But here the order made by the Munsif setting aside the sale was not one that could be legally made under Section 257 of Act VIII of 1859, since no material irregularity in publishing or conducting the sale and consequent substantial injury to the objector, by reason of the irregularity, were established. The Munsif's order, therefore, setting aside the sale, because the sale price was inadequate, no material irregularity being proved, was in excess of the power granted to him by the section. But it was certainly not an order made, as the District Judge assumed in miscellaneous appeal, under Section 11 of Act XXIII of 1861, because there was no question arising between the parties to the suit which the Munsif was called upon to dispose of when lie made his order. If it had been such a question, there could have been no separate suit. But here the auction-purchaser having fulfilled all the conditions of the sale, calls for confirmation, which is refused on no legal ground by the Court executing the decree. He had bought the property, and all that was wanting was a confirmation of his title. If no application of a legal character was made to set aside the sale, the Court executing the decree, to use the words of the section, shall confirm the sale. As in this case no objection permissible by Section 256 had been made, the Court executing the decree was absolutely bound to confirm the sale, and as it did not do so but acted in excess of its jurisdiction in refusing to do so, and in cancelling it, it appears that the suit will lie. We are justified in this opinion by a decision of a Division Bench of this Court of the present appeal, No. 1437 of 1876, decided on the 13th March of the present year.* We, therefore affirm the judgment of the Lower Appellate Court and dismiss the appeal with costs.

-------------------------------------Foot Note-----------------------------------

* In this case the plaintiff sued to establish his right as auction-purchaser to, and to obtain possession of, the property sold 'by auction, by setting aside the orders passed on the miscellaneous side by the first and Appellate Courts which cancelled the said auction sale. The plaintiff added a claim to obtain mesne profits from date of sale to date of possession.

The Lower Courts having on insufficient grounds assumed fraud in the auction sale by reason of inadequacy of price and other irrelevant circumstances, and having held that the orders passed on the miscellaneous side under Sections 256 and 257 of Act VIII of 1859, precluded a fresh suit to establish the auction-purchaser's right to the property, sale of which was annulled, the High Court (Pearson and Turner, JJ.) remanded the case for trial on the merits in a judgment of which the following extract in the material portion:

The order passed by the Muusif on the 10th March 1875, setting aside the sale, and that passed by the Judge on the appeal from it on the 5th June 1875, did not, it would seem, proceed on the ground of any material irregularity in publishing or conducting the sale, and cannot, therefore, in reference to the provisions of Section 257 of Act VIII of 1859 bar the present suit, which the plaintiff is entitled to have tried on the merits. Ho cannot indeed obtain in this suit all the relief he asks for; but if he should succeed in showing that the sale made to him was a valid one which should have been confirmed, he would be entitled to a decree annulling the order abovementioned, and declaring his right to obtain from the Munsif an order confirming the sale, a certificate of the nature described in Section 259, and delivery of the property which was the subject of the sale in the manner provided by Section 263 or Section 264 of Act VIII of 1859.

Same Parties Daryai vs Sukhai Same Subject Property Same Judge Spankie and ;Oldfield, JJ.

Property