MANI LAL Vs. GANGA PRASAD

JUDGEMENT

(1.) This appeal arises out of restitution proceedings under Section 144, Civil P. C. A preliminary decree for rendition of accounts & dissolution of partnership was passed in favour of Durga Prasad against two persons, Mani Lal and Shyam Sunder Lal. Mani Lal was held not liable to render accounts, while Shyam Sundar Lal was held liable to render accounts. Both Shyam Sundar Lal & Mani Lal appealed against this decree. Their appeals were dismissed. A final decree was then passed against Shyam Sundar Lal. Before the decree was passed Durga Prasad had applied for attachment of two houses belonging to Mani Lal. An order of injunction was issued against Mani Lal not to sell his share in the houses. But in spite of the order he sold his share in the houses to one Hazari Lal. The sale was, however, a fictitious sale. Against the dismissal of his appeal against the preliminary decree Shyam Sundar Lal filed a second appeal in this Court. This appeal was dismissed but not without making certain modifications in the preliminary decree. On account of these modifications, a fresh final decree had to be prepared, the original final decree was set aside, and a fresh final decree was passed against both these defendants, Mani Lal and Shyam Sander Lal for Rs. 2284-2-11. Against his decree Mani Lal appealed. The appeal was allowed and be was exempted from the decree altogether. During the pendency of the appeal, however, both the houses were sold and were purchased ostensibly by one Ram Das who stated at the time of the sale that he had purchased the half share belonging to Shyam Sundar Lal for the decree holder Durga Prasad and the other half belonging to Mam Lal for one Ganga Prasad. The sale was then confirmed before Mani Lal's appeal was allowed. There was a second appeal by Durga Prasad but this was dismissed. Then Mani Lal applied for restitution by setting aside of the sale held during the pendency of the appeal. The Civil Judge allowed the application, Ganga Prasad appealed to the lower appellate Court. This appeal was allowed and the restitution application rejected. Mani Lal has now come in second appeal to this Court.

(2.) One proceeding has not yet been mentioned. It will be remembered that during the pendency of the suit in the first Court, Mani Lal had sold his half share to one Hazari Lal. Mani Lal's case was that this sale was a fictitious sale, Hazari Lal died and on his death his son Ram Prakash filed a suit for declaration that he was the owner of the half shares which have been sold to Hazari Lal. To this suit Durga Prasad and Ganga Bam were also parties. The suit was, however, dismissed upon the finding that the sale was fictitious. An appeal and second appeals were also dismissed.

(3.) Before the lower appellate Court two questions were urged. It was argued that the sale in favour of Hazari Lal was not a fictitious sate and that the decision in the suit brought by Ram Prakash was not binding upon Ganga Prasad because Ganga Prasad was no party to the suit. The lower appellate Court gave effect to this plea and held that since Mani Lal had transferred, his interest to Hazari Lal, he had no locus standi to apply for restitution. But the judgment pass, ed in the suit is on the record, and it shows that Ganga Prasad was a party to the suit. Mr. Shabd Saran on behalf of the appellant has also filed a copy of the decree passed in that suit and this also clearly shows that Ganga Prasad was a party to the suit. The lower Court's decision, therefore, cannot be sustained on this ground. If this were decisive of the second appeal we would have allowed the second appeal. But Mr. Jagdish Swarup, on behalf of the respondent, has contended that the lower appellate Court's view on the second point urged before it is erroneous. The second point urged before the lower appellate Court was that Ganga Prasad being a bona fide purchaser, the sale in his favour could not be set aside, even though the decree in execution of which the sale was held was set aside in appeal. The lower appellate Court's view was that the provisions of Section 144, Civil P. C., were enough to cover the case of a bona fide stranger purchaser also and that once a decree in which the sale was held was set aside, the sale automatically fell to the ground and the auction-purchaser, whether stranger or decree-holder, must surrender the property to the judgment debtor, and for this proposition it relied upon the Privy Council decision reported in Jai Berham v. Kedarnath Marwari, A. I. R. (9) 1922 P. C. 269.