KUMARARU NARAYANARU Vs. PADMANABHA KURUP GOPALA KURUP

JUDGEMENT

(1.) THE decree -holder -auction -purchaser is the Appellant. The decree passed in this case first on 15 -3 -1117 allowed the Plaintiff to realise the plaint amount of 1998 3/4 fanams with future interest and costs from Defendants 1 to 8 and the decree schedule property, the extent of which was 5 acres and 94 cents belonging to them. In execution of this decree, the western one -half of the decree -schedule property was sold in Court auction on' 22 -7 -1118 and purchased by the decree -holder1 himself Defendant 8's petition to set aside the sale was dismissed on 27 -2 -1119. On 6 -4 -imi Defendant 5 applied to have the ex parte decree set aside against her. This was allowed so far as she was concerned and the suit was restore to file to the extent of her interest in the property. A fresh decree, so far as the 96 cents in which Defendant 5 was interested in the decree schedule property, was passed on 17 -7 -111 thereby making Defendant 5 and the said 96 cents liable only for a portion of the amount covered by the decree of 15 -3 -1117. After this the decree -holder auction -purchaser applied on 8 -8 -1119 to be put in possession of the property covered by the Sannad. Defendant 8's son who had obtained an interest in the property intervened and objected to the delivery on the ground that with the reopening of the decree on Defendant 5's application the Court sale prior to the same should be deemed to have been cancelled and that delivery of possession based on the sale Sannad should not be allowed. The decree -holder had admitted that a major portion of the property to which Defendant 5 was entitled had been included in the Sannad. He prayed that excluding that portion, he may be put in possession of 2 acres and 21 cents out of the Sannad schedule property. The Courts below held that with the setting aside of a portion of the decree on Defendant 5's application, there was no subsisting sale on the basis of which delivery could be ordered. The appeal is against the orders thus passed.

(2.) THE court sale was conducted on the authority of the decree passed on 15 -3 -1117. This decree was set aside to the extent of Defendant 5's interest in the decree schedule property. So the sale was invalid as regards that property. The effect of setting aside an ex parte decree is to restore the parties to the position they occupied previous to the passing of that decree so that the court proceeds to determine the suit as it stood before that decree. Any attachment that has been issued or any sale that has taken place pursuant to the ex parte decree becomes null and void. Vide - "Doyamoyi Dasi v. Sarat Chunder' 25 Cal 175 (A); - 'Sobhanadri Appa Raw v. Govindaraju Seetaramiah', AIR 1916 Mad 706 (2) (B); Abdul Hakim v. Panehi Dasi', AIR 1917 Cal 564(C). - 'Venketachalam v. Vasudevan', 28 Trav LR 151 (D); - 'Kylasam Iyen Gopala Iyen v. Krishnan Sankara Variar', 13 Trav LR 122 (E) and - 'Madhavan v. Dewan of Travancore', 34 Trav LR 163 (F). There might be other considerations when the auction -purchaser is a stranger and not the decree -holder. In this case the decree -holder himself is the auction -purchaser, so that the sale held in execution of a decree, a portion of which was subsequently set aside, cannot be allowed to stand. The views expressed by the Courts below are upheld and this appeal dismissed with costs.