Case No.:

(AC-Revision-85-1960

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Civil practice and procedure—Executions—Whether judgment debtor can bid in thq sale in execution of his co-debtor’s property—Application for revision against order in execution c be made to High Court Judge—Aggrieved party nor barred by section 189 of the Civil Justice Ordinance—Section 9, Civil Justice Ordinance

..
(i) Where on dissolution of a partnership, property falls to the share ol one of the partners, and application is made by the holder of a decree against both partners as joint debtors fof execution by sale of that property, the joint debtor (partner) cannot bid in that sale. Such a sale will also be set aside if conducted without proper notice.
(ii) Section 189. Civil Justice Ordinance does not debar a party aggrieved by an order made in execution from applying for the revãsion of such order; it only debars parties to an execution from bringing a matter arising from the execution before a court of concurrent jurisdiction

Judgment

(COURT OF APPEAL)

ALl EL HIWEIRIS v. OSMAN EL HIWEIRIS

(AC-Revision-85-1960).

Revision

The facts are fully set out in the judgment of B. Awadalla J.

Advocates: Ahmed Fadi……….. for applicant

                   Fawzi El Tom ………for respondent

August 8, 1960. B. Awadalla I.: —This is an application against the summary dismissal by District Judge, Wad Medani (acting under powers conferred upon him by the Hon. the Judge of the High Court under section 181, Civil Justice Ordinance) of an application for revision against the order of District Judge, Singa, confirming sale of a pump engine belonging to applicant in Execution No. 18/59 Singa District Court.

The parties to this application appear to have been partners in a pump scheme in the vicinity of Singa and in that capacity they jointly and severally incurred liabilities culminating in legal proceedings against them both and resulting in dissolution of the partnership. A correct under standing of many important facts in this controversy is prevented by the sketchy manner in which the relevant execution proceedings were kept. It would appear that there were many executions against both applicant and respondent either severally or jointly and severally but the steps taken in those executions and the entries in the relevant records appear to ha e been made in a manner that is fraught with neglect and lack of precision

* Court: B. Awadalla J., A. M. Imam J.

On calling for the relevant papers, two sets of proceedings were sent, viz., Exec18 and 20/59. Execution 20 relates to a decree in favour of a certain Alawa El Tahir against respondent and another. The second execu tion on the other hand relates to a decree in favour of Mohamed Adlan against both applicant and respondent jointly. Nonetheless it is in the record of execution 20 that the sale complained of appears to have been made, although applicant (i.e., the owner of the pump engine sold) is not a party thereto. The mistake may have been due to the effect that at the time of attachment the engine was jointly owned by applicant and respon dent, and if that is so; then it is not understandable how a dissolution could be effected by virtue of which applicant got ownership of this engine which is deemed to have been then under attachment by the court with out approval of the court entered in the record. As it stands, the sale of the engine, which is not now contested by anyone to be applicant’s property, in an execution in which applicant himself is not a party, appears simply to be ridiculous.

It also appears that thirty days’ notice of sale was on March 18,1959, ordered by the court to be published in the press. According to the terms of the order, the thirty days started from the date the order was made but the order itself was only executed by the responsible court clerk on March 26,1959, by sending copy for publication,in the Rai El Amm news paper, and it is no wonder therefore that the said notice appeared in the issue of April 5,1959, stating that sale of the engine would take place on April 18,1959, which meant that although the date of sale was exactly thirty days from the date of the order, it was only thirteen days from the date of publication of the notice. The record does not show that notice by othçr means enumerated in rule 27 of Order XV was made. On April 18, 1959, the order of sale was returned unexecuted because of lack of bidders.

On September 29, 1959, a new order of sale was made and the relevant Form C 22 (made under rule 24 of Order XV) duly filled in addressed to the Bailiff for execution after giving thirty days’ notice. The order was expressed to be returnable on or before October 27, 1959. The record of the execution shows that this order was required to be displayed in the courts and on other otice boards, but it does not appear from the copy of the order itself that it was so displayed.

December 2, 1959, an entry appears on the record indicating that the engine was sold for £$.901 and ordering payment to the creditors. Accord ing to the Bailiff’s certificate at the bottom of the court’s copy of the order, the sale took place on December 1, 1959, after only fifteen days’ notice. Although the order was on the face of it impossible that fact alone couldn’t confer on the Bailiff authority to affect the sale after only fifteen days’ notice, and I shaU refer to this aspect of the case at the bottom of the judgment.

Without making any application to the court executing the decree, applicant on December 16,1959 wired the Hon, the Judge of the High Court for cancellation of the sale, contending that the value of the engine is £S.8, 000, supplementing his wire by another wire on the same date showing his readiness to pay all the decretal debt and costs. Ten days later, i.e., on December 26, 1959, his advocate, Mansour Khalid, submitted to the Hon. the Judge of the High Court his grounds against the sale to respondent and contended (a) that to allow a debtor under a decree to bid n these circumstances is a material irregularity in the conduct of sale within the meaning of rule 44 of Order XV, and (b) that whether or not the above rule is applicable, this is a case calling for exercise by the court of its inherent powers under section 226, Civil Justice Ordinance.

The District Judge to whom the case was referred by the Hon. the Judge of the High t considered the application hut dismissed it on the ground that the remedy sought is wrong and that the matter ought first to have been pursued in the court executing the decree within the meaning of section 189, Civil Justice Ordinance.

It is to consider whether or not this order is correct that this applica tion now comes to the Court of Appeal.

Before us, applicant was represented by Advocate Ahmed FadI and the only comprehensive ground that he gave in favour of his application is the common sense one that if a judgment debtor has some outstanding liability under a decree he should not be allowed to bid for property of a co-debtor put up for sale in satisfaction of that decree.

Respondent was represented by Advocate Fawzi El Torn who contends that the Civil Justice Ordinance is silent as to bids by judgment debtors and that as respondent was not bidding to purchase his own property but the property of a co-debtor in which he holds no interest whatsoever, then the sale cannot be impeached on any sensible ground.

Advocate for applicant gave no reason why he considers the decision of the learned District Judge, refusing to entertain an application for revision, as wrong. It is for this court now to consider whether the learne District Judge was right in dismissing the application aiid after considcratio of the authorities on the point, I am of opinion that he was not. Section 189 (1) reads as follows:

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”

Mulla, Code of Civil Procedure, 12th ed. p. 185 says:

“If the question is one relating to the execution, discharge or satisfaction of the decree, but does not arise between the parties to the suit the section does not apply, and a suit is not barred. Parties ti parties who are opposed to each other in the suit, though not necessarily as plaintiff and defendant.”

There appears to be a conflict of opinion in India as to whether judgment debtors inter se are parties to the Suit or otherwise. The Allahabad High Court has held that they are not, but the Madras High Court was a different view; but the Allahabad Court’s view seems to be more in accordance with reason and is treated by Sarkar, page 87, as without ‘alternative.

But is section 47 at all relevant in this case? This section aims at preventing actions on executable judg for on such judgments the only remedy is execution. Does it then prevent an application for revision under section 175? Clearly it does not. Section 189 gives exclusive jutls diction to the executin court as a court of first instance; but if there is an order made by that court against which application lies under section then the operation of the latter section couldn’t be restricted by section 189. In the present case, the order dated December 2, 1959, sanctioning payment to the creditors out of the proceeds of the sale is tantamount to an order confirming sale and it is not at all feasible that section 189 can prevent an aggrieved party from questioning the propriety of such an order, ‘“nosing as his forum, not a court of concurrent, but one of appellate jurisdiction.

We now come to the merits of the claim, viz., whether a judgment lebtor liable under the decree of which execution is sought can be allowed to bid at an auction in which the property of his co-debtor is put up for sale in execution of that decree. I am of opinion that he should not. The an sense argument pressed by Advocate Ahmed Fadl means simply that it would be an abuse of the process of the court for a judgment debtor is wholly or partially capable of meeting his’liabihties under a decree to avoid such obligation and then try to invoke the machinery of the court ring property which may never have been sold had he accorded the orders  of the court the respect and obedience to which they are entitled. It is true that the Civil Justice Ordinance is silent as to bidding by co Rule to which Advocate Mansour Khalid referred in his application to the Hon, the Judge of the High Court deals with sales of immovable not moveable property It is therefore, for this court to invoke the principles of justice, equity and good conscience as it is required so to ‘ section 9 of the Civil Justice Ordinance. Accordingly, the courts will give due consideration to the principle that he who seeks equity must do equity and will therefor never lend their a and effect a forcible transfer of property from X to Z if Z has an outstanding obligation towards X which he refuses to honour.

Another reason why a co-judgmet debtor should not be allowed to bid in such circumstances is that if the proceeds of the sale are not sufficient to discharge the whole liability under the decree and the decree holder applies to seize the same property again before the purchaser takes delivery of it, the court would find itself faced with, conflicting duties, viz., its duty to the purchaser to deliver the property to him under the auction purchase and its duty to the decree holder to attach the property towards settlement of the balance. That would no doubt be a situation, which the court should avoid.

Lastly, a judgment debtor is a person who is interested in the result of the sale even though the property is not his own. He is a contributory in equity if his co-debtor pays or is made to pay more than his fair share and to allow him to bid would mean placing him in a situation wherein he would be able at least to delay his liability to contribute by buying the property at a price not in excess of the fair share or maximum which his co-debtor should pay in equity.

All these are reasons cogent enough to induce this court to make the pronouncement that a judgment debtor should not be allowed to bid in an auction conducted in execution of a decree under which he is liable. In the present case, however, there is another reason why this sale should be set aside and this is because it was conducted without notice. As stated above, the order by the court dated September 29, 1959, and addressed to the Bailiff required that the sale should be conducted after giving thirty days’ notice. That was of course impossible and the Bailiff ought to have returned the order for correction. Instead of doing so he conducted the sale by giving only fifteen days’ notice which it was no doubt beyond his power to do. The sale having been conducted without notice is therefore null and void.

This application is therefore allowed with costs here and in the High Court. The sale by virtue of which the engine was acquired by respondent is hereby set aside without prejudice to the rights of the decree holder to pursue his rights against such property in such manner as the law prescribes.

Abdel Mageéd Imam J.: —I concur.

                                                        (Application aIlowed)