GOPAL KRISHNA DAS versus SAILENDRA NATH BISWAS & ANR.

GOPAL KRISHNA DAS versus SAILENDRA NATH BISWAS & ANR.

Deficiency of price in a re-sale under Order XXI Rule 71 CPC can be recovered from the defaulting auction purchaser only if the deficiency is attributable to his default. In this case, the difference in price was due to the disclosure of an encumbrance in the second sale proclamation which was absent in the first, and not on account of the auction purchaser's default. Therefore, the appellant cannot recover the deficiency from the respondent under Order XXI Rule 71.

Parties
Appellant: Gopal Krishna Das; Respondent No. 1 (executor and Legal Representative of Auction Purchaser): Sailendra Nath Biswas; Respondent No. 2: Official Receiver, estate of Ganga Prosad Gupta
Jurisdiction
India
Judgment Date
26 February 1975
Procedural Posture
Civil Appeal / Appeal by Certificate Under Article 133(1)(a) & (c) of the Constitution From Judgment of Division Bench of Calcutta High Court
Outcome
Appeal dismissed
Legal Topics
Execution of Decrees, Auction Sales, Deficiency of Price, Limitation
Civil Procedure Execution of Decrees Auction Sales Deficiency of Price Limitation

Case Brief

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Parties

Gopal Krishna Das

Appellant

Sailendra Nath Biswas

Respondent No. 1 (executor and Legal Representative of Auction Purchaser)

Official Receiver, estate of Ganga Prosad Gupta

Respondent No. 2

Procedural Posture

Civil Appeal / Appeal by Certificate Under Article 133(1)(a) & (c) of the Constitution From Judgment of Division Bench of Calcutta High Court

Legal Issues

  1. 1 Whether the appellant is entitled under Order XXI Rule 71 CPC to recover from the respondent the deficiency in the price realised in the second sale
  2. 2 Whether deficiency of price must be attributable to auction purchaser's default under Order XXI Rule 71 CPC
  3. 3 Whether the appeal before the Division Bench was barred by limitation

Ratio Decidendi

Deficiency of price in a re-sale under Order XXI Rule 71 CPC can be recovered from the defaulting auction purchaser only if the deficiency is attributable to his default. In this case, the difference in price was due to the disclosure of an encumbrance in the second sale proclamation which was absent in the first, and not on account of the auction purchaser's default. Therefore, the appellant cannot recover the deficiency from the respondent under Order XXI Rule 71.

Court Disposition

Appeal dismissed

Orders

  • The judgments of the Division Bench are confirmed.
  • The appeals are dismissed with costs; costs in one set.