MAGANLAL BECHARDAS Vs. SHAH KESHARIMAL DALICHAND

JUDGEMENT

(1.) This is a somewhat unusual Application in the sense that the petitioner who in the executing Court took up the stand of having the auction sale held by the Court confirmed has now taken a complete somersault and submitted that that very same auction sale which he wanted to have confirmed should be set aside.

(2.) The 2nd opponent obtained a money decree in suit No. 172 of 1953 on the 12th of October 1954 against the firm of Mody Dayaram Bechaldas in which firm the petitioner was a partner along with opponent No. 3. That was a consent decree. Under the decree a first charge was created in respect of the decretal amount on a house belonging to the judgment-debtors and an order of attachment before judgment of that house was issued when the suit was filed. The judgment-debtors failed to pay the decretal amount in accordance with the terms of the consent decree and thereupon the 2nd opponent took out execution proceedings being Darkhast No. 72 of 1956 in the Court of the Civil Judge (Senior Division) Broach to recover the decretal amount by enforcing the charge and by having the property sold by auction sale under the supervision of the Court. On the 27th of November 1927 the property was put to auction sale and it was purchased by the 1st opponent who deposited the full amount of the purchase price in Court. On the 27th of December 1957 the 1st opponent however filed an application No. 63 of 1957 praying that the property purchased by him at the auction sale had already been sold alongwith two other properties of the judgment debtors at an auction sale by the Mamlatdar Broach on the 25th of November 1957 for a sum of Rs. 9500.00. The 1st opponent pleaded that at the time when the Court held the public auction and he purchased the property in question the judgment-debtors had no right title or interest in the property in question which they could transfer to him by reason of the fact that the same property together with two other properties had already been sold at a public auction by the Mamlatdar on the 25/11/1957. The 1st opponent therefore asked that in view of these circumstances the Court should set aside the sale in his favour under the provisions of 0. 21 R. 9 of the Code of Civil Procedure. I may mention that this application of the 1st opponent was opposed by the judgment creditor the 2nd opponent as also by all the judgment-debtors including the petitioner and by his reply Ex. 16 he had contended in the executing Court that the sale in favour of the purchaser at the public auction held by the Court should be confirmed. The trial Court dismissed the application of the 1st opponent and confirmed the sale in his favour. The 1st opponent appears to have been content with the order passed by the trial Court but the petitioner who in the trial Court had asserted that the sale in his favour should be confirmed filed an appeal against the order passed by the trial Court confirming the sale which confirmation he in fact had asked for in his reply Ex. 16. The learned District Judge dismissed that appeal holding (1) that the petitioner could not be said to be a person aggrieved by the order passed by the learned trial Judge and (2) that on merits also the order passed by the trial Judge was correct.

(3.) Mr. Desai who appears for the petitioner has argued that even though he may not be said to be a party aggrieved by the order passed by the learned trial Judge he was affected by the order passed by the trial Court and therefore he had a right to appeal. Apart from the question however whether he had a right to appeal or not the petitioner has in my view no case on merits whatsoever.