SMT. LAXMI DEVI versus SETHANI MUKAND KANWAR & TWO OTHERS

Citation: [1965] 1 S.C.R. 726 · Decided: 09-10-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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/ enforce-
able 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 regard-
ing substanticll injury-1Vecessity for. 
The 2nd respondent obtained a money decre<> against the 3rd respon-
dent 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. Sec-
tion 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 irregu-
larity 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 how-
ever 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 appli-
D 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, res-
pondent No. 2 obtained a

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