VELAYUDHA KONAR Vs. KORA MIAH SAHIB

JUDGEMENT

(1.) THIS appeal under the Letters Patent is against the judgment of Venkataraman j. allowing C. M. S. A. No. 153 of 1966. The appellant before us is a mortgageedecreeholder. After final decree in the mortgage suit, the judgment-debtor had been adjudged insolvent. In the execution proceedings though the decree-holder through the Official Receiver in whom the equity of redemption had by then vested due to the adjudication, the Official Receiver had both been made a party to the said proceeding. In the court sale held in execution of the decree, the decreeholder himself purchased the property but ignoring the above court sale, the Official Receiver sold the property to a third party. The appellant before us who was the decreeholder auction purchaser was unable to take possession of the property. There were two suits, one filed by the present appellant to set aside a summary order regarding obstruction caused while he attempted to take delivery of a particular item of property, and the other was by the person who was in possession of the other items of property through the Official Receiver to injunct the decreeholder auction purchaser from interfering with her possession. In these two suits it had been held that the auction sale in pursuance of the mortgage decree was void inasmuch as the Official Receiver in whom the equity of redemption had vested (as the judgment-debtor had been adjudged insolvent subsequent to the final decree) has not been made a party.

(2.) AFTER the decision in the above two suits, the appellant filed E. A. 1289 of 1963 in the executing court purporting to be under Section 151, C. P. C for setting aside the court sale and the part satisfaction of the decree which had been recorded earlier. This is obviously with a view to take fresh execution proceedings to bring the property to sale in the presence of the Official Receiver or his successor-ininterest. viz. the first respondent before us, who will hereinafter be referred to as the respondent.

(3.) THE respondent is a person claiming title to the property through the Official receiver. He contended that even though the court sale is not binding on the official Receiver and that the Official Receiver had conveyed good title to his (respondent's) predecessor-in-title, the court sale in favour of the appellant was not a nullity, that the appellant's remedy if any was to have filed an application under Order 21, Rule 91, C. P. C. , that such an application being barred by time he is without any remedy. This contention of the respondent was however not accepted by the executing court and the first appellate court. The respondent filed c. M. S. A. No. 153 of 1966 in this court and Venkataraman J. has allowed the appeal holding that the court sale, though would not bind the Official Receiver, is not a nullity and is valid and binding as between the parties to the proceeding. It is contended on behalf of the appellant that the view taken by the learned Judge is not correct.