UMMAJI JAVICHAND FIRM OF GUNTUR AND ANR. Vs. RAVULA SUBBARAO GARU REPRESENTED BY AGENT HARIPRASADA RAO AND ORS.

JUDGEMENT

(1.) THE question in these appeals is whether the lower Court had the power to order restitution on a petition or whether it should have relegated the petitioner to a regular suit. In O.S. No. 64 of 1934 in the Court of the Subordinate Judge of Bapatla respondent 1 sued Venkataratnarao and Kamaraju, the minor sons of one Ramakoteswara Rao, for the recovery of a sum of money due by them under the pious obligation rule of Hindu law. He obtained, a decree and attached the judgment -debtors' interest in certain properties belonging to the family. An auction was held on 1st December 1936 and the decree -holder purchased the interest of the judgment -debtors for a sum of Rs. 2363, which he paid into Court. The judgment -debtors applied Under Order 21, Rule 90, Civil P.C., for an order setting aside the sale. The application was dismissed because they failed to comply with the requirements of the rule. On 28th September 1937 the sale was confirmed. There were other creditors who had attached the judgment -debtors' interest in these properties and they applied for rate able distribution of the Rs. 2363. Their applications were granted and the money was paid out rate ably.

(2.) NOTWITHSTANDING the provisions of Rule 92 of Order 21, the judgment -debtors filed a suit (O.S. No. 77 of 1937) in the Court of the District Munsif of Bapatla for a declaration that the sale was void by reason of material irregularity. The District Munsif rightly held that the suit did not lie and dismissed it on 23rd December 1939. The only contesting defendant in the suit was respondent 1, the auction -purchaser. The creditors who obtained rate able distribution of the Rs. 2363 were not made parties. The judgment -debtors appealed to the Subordinate Judge. This appeal (No. 92 .of 1940) was decided on 17th April 1940 and was allowed. Certain reasons were given by the Subordinate Judge for his decision; but we cannot accept them as valid grounds for his decision. Respondent 1 did not support the judgment of the District Munsif and this was in all probability the deciding factor. The reason why respondent 1 did not oppose the appeal is made plain by what happened in O.S. No. 32 of 1937 in the Court of the Subordinate Judge of Bapatla. That suit was filed by one Kuppuswami Chowdhuri against the judgment -debtors, their father and respondent 1 to enforce a mortgage which he held over the properties attached by respondent 1 in execution of his decree in O.S. No. 64 of 1934 and other properties belonging to the family. On 20th April 1940, that is, three days after App No. 92 of 1940, had been allowed, a decree was passed by consent in O.S. No. 82 of 1937 and under it respondent 1 gave up his rights under the attachment which he had obtained in execution of his own decree, receiving as compensation a second charge for the sum of Rs. 4000 on the properties which he had bought at the auction held on 1st December 1936. The decree also provided that Kuppuswami Chowdhuri the mortgagee decree -holder should proceed first against the other properties of the family. There can be no doubt that respondent 1 surrendered the rights which he had obtained in the execution proceedings because he was given security for the payment of Rs. 4000.

(3.) THE facts in Raja Rao v. Ananthanarayana Chetti, A.I.R. 1922 Mad. 228 which was decided by a Division Bench were these certain properties were attached in execution proceedings and brought to sale. The purchase consideration was paid by the successful bidders into Court and was rate ably distributed among other creditors of the judgment -debtor. The sons of the judgment -debtor, who had objected in the execution proceedings to the properties being sold on the ground that they belonged to a trust, brought a suit to establish this claim. The decree asked for was granted and the plaintiffs recovered possession of the properties. The auction -purchasers then applied for an order for the refund of the purchase moneys which had been paid out to the other creditors of the judgment -debtor. The question before the Court was whether Section 144 applied and if it did not, whether Section 151 could be invoked in order to obtain a refund of the moneys paid out to the creditors. It was held that Section 144 did not apply because the decree under which the sale had taken place had not been varied. The Court considered that Section 151 could not be called in aid because that section had been inserted in the Code in order to meet the ends of justice to prevent an abuse of the process of the Court. It should not be invoked to obtain an order which only sets right one injustice by the infliction of another.