Authored By : Loftus Richard Tottenham, Banerjee

Loftus Richard Tottenham and Banerjee, JJ.

1. The first point should, we think, be decided in favour ofthe appellant. Section 293 of the Code of Civil Procedure enacts, amongst otherthings, that the deficiency of price happening on a re-sale shall berecoverable by the decree-holder from the defaulting purchaser under the rulescontained in Chapter XIX for the execution of a decree for money. Questionslike the one disposed of by the Court below in this case, must, therefore, betaken to be of the nature of questions arising between the decree-holder andthe judgment-debtor relating to the execution of decrees, such as arecontemplated by Clause (c) of Section 244. And as an appeal is allowed from thedecision of any of these questions, there is no reason why an appeal should notlie against the decision of the Court below in this case, This view is inaccordance with the decisions of this Court in the cases of Sree Narain Hitterv. Mahtab Chund 3 W.R. 3, Sooruj Buksh Singh v. Sree Kishen Doss 6 W.R. Mis.126, Joobraj Singh v. Gour Buksh 7 W.R. 110, Bisokha Moyee Chowdhrain v.Sonatun Doss 16 W.R. 14, and with the Full Bench ruling of the Allahabad HighCourt in the case of Ram Dial v. Ram Das I.L.R. AIl. 181, with reference to thecorresponding provisions of Acts VIII of 1859 and XXIII of 1861. It is truethat the point has been considered open to doubt in two later cases Huree Ramv. Hur Per shad Singh 20 W.R. 397 and Ramdhani Sahai v. Rajram Kooer I.L.R.Cal. 337; Lut in both these cases the appeal was heard and dismissed upon othergrounds: and we see no reason to dissent from the earlier rulings by which anappeal is expressly allowed.

2. The second contention raised by the respondent is,however, in our opinion, perfectly valid, and this appeal must, therefore,fail. We think the re-sale contemplated by Section 293 of the Code of CivilProcedure must be a sale of the same property that was first sold, and underthe same description and any substantial difference of description at the saleand the re-sale in any of the matters required to be specified by Section 287to enable intending purchasers to judge of the value of the property, shoulddisentitle the decree-holder to recover the deficiency of price under Section293. No doubt it is quite possible that, between the two sales, the value ofthe property may be changed by causes such as diluvion and the like, which arebeyond the control of anybody; and, in such cases, it might fairly be urgedthat the decree-holder should not suffer for the purchasers default. But inthe first place that is not the case here. In this case the two encumbrancesnotified at the re-sale were in existence, either wholly or partially, at thetime of the first sale; and one of them must have been known to thedecree-holder since it was in his favour; and the other he was bound to enquireinto, as the rules made by this Court under Section 287 of the Civil ProcedureCode throw upon him the duty of ascertaining and notifying to the Court theencumbrances upon any property advertised for sale in execution of decree. Inthe second place, even if the difference of description were due to any suchcause as is above referred to, although the decree-holder may, under certaincircumstances, he entitled to recover damages from the defaulter, that must beby a regular suit and not by an application under Section 293. A claim torecover the deficiency of price by way of compensation would involve inquiryinto difficult questions which must be decided before the proper amount ofdamages could be ascertained; and, the Legislature by leaving it to the officerholding the sale (who is generally a ministerial officer) to certify to theCourt the amount that is to be recovered under 3. 293, has sufficientlyindicated that cases involving questions like these were never intended to becovered by that section, and that the only cases to which that section wasintended to apply, are cases where the same property is sold under the samedescription at both the two sales. In the present case, after the decree-holderhas succeeded in misleading the defaulting purchaser to bid a high price, bywithholding information as to encumbrances which it was his duty to notify, ifhe were allowed to recover the deficiency of price at there-sale, it would beallowing him to take advantage of his own neglect of duty. That would be somanifestly inequitable that we are unable to hold that the Legislature couldhave ever intended such a result.

3. As the appeal fails upon this ground, it is unnecessaryto say anything upon the other two points raised by the respondent.

4. As regards one of the five properties (it is one of verysmall value), it was urged that the encumbrances were not notified at the re-sale,just as they had not been notified at the first sale, and that the appellantwas consequently entitled to succeed in regard to that property in any case.But the decree-holders petition, before the re-sale, stated that that wassubject to the same encumbrance as the other four, and so, practically, therewas no difference between the case of that property and that of the other four.

5. The result is that this appeal must be dismissed withcosts.

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Baijnath Sahai vs.Moheep Narain Singh and Ors. (28.03.1889- CALHC)