SHAM MOHAN LAL Vs. JAI GOPAL

JUDGEMENT

(1.) Arguments in this appeal were first heard in November, 1963, when it was adjourned so as to enable the parties to come to some amicable settlement. The respondents' learned counsel had, h nay be pointed cut, taken strong objection to the competency of the appeal and had also urged that the decisions Of the Court's below having done substantial justice between the parties this Court should dedine interfeience on revision as well. After some time, I was informed that there was little prospect of an agreed solution. The; appeal, was ,thus directed to be set down for re-hearing. It is in these circumstances that this appeal has now been fully heard. The respondent's counsel his, however, not appeared on this occasion and, therefore, has not addressed any arguments despite the case being on the boaid.

(2.) Turning to the facts, Jai Gopal (respondent in this Court, secured a decree-against Kanwar Gopal for the recovery of Rs. 1,200.00 with interest at 12 per cent per annum from 19th December, 1957 till payment. This decree was obtained in suit No. 454 of l956. It may be pointed out that this was a decree passed on an arbitration award. It was also provided therein that if the judgment-debtor paid the amount due with interest at the rate of 6 per cent per annum by 20th February, 1957, the decree would be treated as discharged. It is also observed in the orders of the Courts below that a house belonging to Kanwar Gopal defendant-judgment, debtor had been attached before judgment and the amount recoverable by Jai Gopal was a charge on the said house. Kanwar Gopal having not complied with the terms of this deciee, Jai Gopal decree holder, took out execution thereof and made an application under Order 21, Rule 66, Code of Civil Procedure. In reply to this ..application, S:ham. Mohan Lal (present appellant and), put in his reply denying the charge of the decree-holder on .the property in dispute He also. alleged that this property had been auctioned in court- auction and purchased by him for Rs. 11,500.00 and that it was specifically mentioned in the sale certificate, issued to, him that there 'was no lien on the property. The decree holder, according to this reply.could proceed against the personal property of the judgment Debtor. It was appareiitly alsoayerred that the decree-holderr had in, his prior application sough", participation in rateable distribution. These pleas gave rise to the solitary issue which was in the following terms-

(3.) On second appeal, Shri G. S. Vohra. learned Counsel for Sham Mohan Lal, has very strongly argued that the two Courts below have seriously erred in law in disallowing his objections. According to the learned counsel, the attachment was in subsistence and the appellant was entitled to resist Jai Gopal's claim to proceed against the property in question. According to him, the Courts below have assumed certain facts which arc incorrect and are not founded on any evidence on the record. When confronted with the objection to the comp tency of the appeal, the appellants' counsel has relied on section 47, Code of Civil Procedure, and has submitted that the appellant, as an auction purchaser, is a representative of the judgment-debtor. In support of this sub' mission, he has relied on the following decisions :-