Find a Lawyer

Letters Patent Appeal No. 83 of 1971, decided on 1st October 1971.

O. XXXIX, r. 6‑Interlocu tory order‑Power to order interim sale‑Consent order regard ing sale of goods pledged with plaintiff (Bank)‑‑‑General consent order obtained that "goods pledged with plaintiff male be disposed of with the consent of defendant at price not below their pledged value"‑Further application by plaintiff that Nazir of Court be nominated as person authorised to sell goods‑Court modifying previous order and directing that "in event of plaintiff or defen dant failing to supply offers within stipulated time, the Nazir to sell the goods by public auction"‑Held, substantial modification of previous consent order could be justified only, in changed circumstances or on considerations not originally contemplated; the plaintiff merely prayed that name of person to effect sale be mentioned whereas the Court passed second order containing details not agreed upon and not forming part of previous consent order‑Modification as made of previous consent order, held, not proper.

Naimuddin for Appellant.

Mansoor Ahmed Khan for Respondent.

Date of hearing : 1st October 1971.

‑‑This Letters Patent Appeal is directed against the order of a learned Single Judge of this Court dated the 19th of April 1971, by which a consent order, dated the 26th of October 1970, has been modified.

2. The circumstances which have led to the above order are that an application was made by the present appellant for obtain ing a general order of this l Court that the goods which are pledged with the respondent may be disposed of with the consent of the appellant at a price not below their pledged value. This prayer was accepted by consent and order was made accordingly. Thereafter another application was made by the present respondent practically for the same purpose and counsel for the respondent says that it was a mistake which resulted from the fact that the same case was handled by two lawyers in his office. After that application a third application was made which is dated the 22nd of March 1971 and was presented on the 26th of March 1971 in which a reference was made to the order of the 26th of October 1970. In it a prayer was also made for nominating the Nazir as the person who would sell the pledged goods at the best offers supplied by the appellant within one month. We may mention for clarification that the appellant is the pledger and the respondent is the bank with whom it had pledged its goods. The bank has filed a suit for the recovery of money and the above‑mentioned applications were made during the course of the proceedings. The suit is still pending.

3. On the third application, dated the 22nd of March 1971, a learned Single Judge of this Court ordered on the 19th of April 1971 that ‑

"the Nazir of this Court to sell these pledged stocks and the plaintiff (bank) should make offer for the said goods to the Nazir and for that purpose the Nazir should ask the plaintiff (bank) and the defendant (pledger) to supply the best offers within one month or within such time for which he may obtain permission from the Court and effect the sale against the highest offer so submitted by the parties. In the event of the plaintiff (bank) and or the defendant (pledger) failing to supply the offers to the Nazir within the stipulated time the Nazir should sell the goods by public auction subject to the approval of the Court."

4. The pledger has come in appeal against the above order and the grievance of Mr. Naimuddin on behalf of the appellant is that the above order deviates considerably from the terms of the consent order. Mr. Naimuddin took the position that the bank having agreed to the terms on which the goods were to be sold it was not right on its part to try to obtain the modification of that order by making applications as it has done.

5. Mr. Mansoor Ahmed Khan, counsel for the bank, took the plea that the third application was not intended to deviate from the original order to which consent was given but only to make it technically complete and practically workable by introducing the name of the person who is to sell the goods. In support of this contention he relied on rule 6 of Order XXXIX, C. P. C., which is as follows :

"The Court may, on the application of any patty to a suit, order the sale, by any person named in such order, and in such manner and on such terms as ft thinks fit, of any movable property, being the subject‑matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once."

Counsel relies on the words "by any person named in such order" and argued that in the consent order no name was mentioned, therefore, it was ambiguous. We think that in the context of this case it is clear that the bank was authorised to effect the sale but if it is accepted that a name was to be expressly included in the order, then the only change that should have been made in it was to mention a name so that the rest of the order could be carried out by the named person, but actually the order which has been obtained contains many more details and conditions that were not agreed upon and did not form a part of the consent order.

6. We realise that sometimes after consent is given to an order the situation may change and. in view of the changed circumstances or considerations which were not originally contemplated it may be necessary to take the stand that the consent order needs to be revised but in that event the proper course is to rely on the changed circumstances or the new considerations and on that basis to justify that the consent order can be modified. In this case such a course was not adopted and if it is correct that only the name of the person who was to effect the sale was to be introduced, then on that plea the substantial modifications that have been obtained could not be justified. We think that there was no warrant for adopting the course which has been adopted.

7. Let us, however, concede that the name of the person who is to effect the sale may be included in the order. The effect of this will be only that the name of the Nazir of this Court would be included In such a manner as to give the power of sale to the Nazir on the same terms on which the consent order was made. The first application was accepted by a short order as follows :‑

"By consent the application is granted."

If the name of the Nazir of this Court is to be included as the person who will effect the sale, then the consent order will take the following form

"The goods lying pledged with the plaintiff‑bank may be disposed of by the Nazir of this Court with the consent of the pledger at a price not below their pledged value."

8. We accordingly accept this appeal and modify the order dated the 19th of April 1971 as set out above. The appellant will get the costs of this appeal.

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.