MOIDEEN Vs. LAKSHMI NARAYANAN

JUDGEMENT

(1.) IN O. S. No. 114 of 1967 on the file of the Subordinate judge of Palghat, the respondent had obtained a decree for sale of some properties belonging to the defendants in the suit, the present revision petitioners. IN pursuance of the decree, the properties were sold in court auction on 1-3-1976 , when the decree holder purchased the same after getting due permission from the Court. The sale was confirmed on 18-12-1976.

(2.) IN the meanwhile, the third defendant-petitioner took steps to set aside the decree. That had come up to this Court in C. M. A. No. 68 of 1977 which appeal was dismissed on 19-2-197 9. When the appeal was pending, this Court had granted a stay of further proceedings, consequent on the sale on condition of deposit of Rs. 6,000/- towards the decree debt which condition had been complied with. When the C. M. A. was pending, an amount of Rs. 1960/- was also deposited towards the income of the properties.

(3.) THE court below allowed the petition. It would appear from the order that was passed in the matter that the main objection raised before the Court was that the decree holder is not entitled to recover the profits of the property, after the sale and confirmation of the sale, by means of the application of the nature filed in the proceedings and the remedy, it any, open to him is by way of a suit THE decree-holder in bis application had invoked only S. 151 CPC. though in the argument before the court below his counsel had relied on S. 47 CPC. THE lower court purporting to follow AIR. 1956 sc. 87 (Ramanna v. Nallayaraju), held in favour of the decree holder-applicant. It was said that the expression "relating to the execution" in S 47 cpc. would apply as well to a dispute arising in relation to the execution of a decree after it had been executed as it would to a dispute relating to the execution of a decree before it had been executed. It might be noted here that earlier, E A. 230/79 had been allowed by an order dated 5-10-1979. This was sought to be reviewed by the petitioners herein by application E. A. 771/79. THEre it was stated that on account of the sudden demise of their counsel, Sri muhammad Kunju during the pendency of the proceedings they were not able to engage another counsel and put forth their case properly before the court It was further stated therein: Why I made this extract will be clear from the subsequent discussion. This application for review was allowed and E. A. 230 of 1979 was restored to file and heard afresh. It was then the impugned order, the details of which I have given earlier was passed. THE judgment debtors aggrieved by the order have come up in revision to this Court.