ATHIAPPA ASARI Vs. CHINNA GOUNDAR AND ORS.

JUDGEMENT

(1.) THIS second appeal raises two questions arising under the execution chapter of the Civil Procedure Code. (i) construction and application of Order 21. Rule 57(1) : and (ii) construction of an order passed by an executing Court dismissing an execution petition under that rule on account of the default of the decree -bolder. These two questions have arisen as between the appellant and the first respondent. Both are court -auction purchasers of the self -same item of property belonging to the same individual. They purchased the property at different times, in execution of different decrees against the same judgment -debtor. As between the two Court auction -sales, than in which the appellant purchased the property was prior in point of time. Although this was so in fact, the first respondent asserted his title as a purchaser under the subsequent Court auction purchase, on the score that the earlier auction sale in the appellant's favour was void. Both the Courts below accepted this contention and upheld the first respondent's title to the property as against the appellant's claim.

(2.) THE question in this second appeal is whether the Courts below were right in holding that the earlier execution sale in which the appellant purchased the property was an invalid sale. To consider this question some further facts relating to this Court auction -sale would be in point. This auction sale was held in execution of a small cause decree, dated 6th June, 1966 in S.C. No. 213 of 1966. On 28th March, 1967, the decree -holder in that suit filed E. P. No. 183 of 1967 for attachment and sale of the judgment -debtor's 1/3rd share in the suit property. Attachment of the property was actually effected in the said execution petition on 28th March, 1967. On 14th August, 1967, the Court ordered the decree holder to file batta and sale papers within one week, and posted the execution petition for further hearing to 7th October, 1967. On 7th October, 1967, the executing Court passed the following Order: Sale warrant batta not paid. Execution petition dismissed. Attachment to continue for three months.

(3.) WITH E. P. No. 183 of 1967 disposed of thus the decree -holder later filed E. P. No. 1074 of 1967. In that execution petition the Court straightaway ordered sale of the property on 12th January, 1968. Pursuant, to this order the property was actually brought to sale on 6th March, 1968 It was in this Court sale that the appellant purchased the property.