CHHEDI LAL Vs. HAJI ABDUL MAJID

JUDGEMENT

(1.) This is a decree holder's execution second appeal. It arises in the following circumstances.

(2.) The appellant filed a suit for recovery of a certain sum of money against Mohd. Amin and Mohd. Idris (respondents Nos. 4 and 5 respectively). In the suit the appellant got a house bearing Municipal No. B-16/127 Malti Bagh, Vara-nasi attached before judgment. The suit was decreed on 24-11-1952. The appellant made an application for execution by sale of the aforesaid house. Before the house could be sold Smt. Amina Bibi and Smt. Asiya Bibi-- respondents Nos. 2 and 3 in this appeal-- instituted a suit under Order 21 Rule 63 of the Code of Civil Procedure for a declaration that the house in question was not liable to be sold. However, during the pendency of this suit the house was sold to Haji Abdul Majid respondent No. 1 for Rs. 2,160/-. The sale was confirmed in favour of Haji Abdul Majid on 24-2-1955 and in pursuance of the auction sale possession was delivered to him on 31-5-1956. The suit of Smt. Amina Bibi and Smt. Asiya Bibi was decreed on 16-8-1956. It was declared that the house in dispute was not liable to be sold in execution of the decree passed against the aforesaid respondents Nos. 4 and 5. Thereupon, Smt. Amina and Smt. Asiya Bibi applied for restitution claiming possession over the house as well as damages for use and occupation at the rate of Rs. 10/- per month. Haji Abdul Majeed the auction purchaser filed an objection against the restitution application. The learned Munsif allowed the application for restitution and directed the auction purchaser to deliver the possession of the house to the aforesaid two ladies and to pay damages at the rate of Rs. 2/- per month. Aggrieved by the decision of the learned Munsif the auction purchaser filed an appeal. While dismissing the appeal, the lower appellate court has directed that the auction purchaser shall deliver possession to the aforesaid two ladies while the decree-holder (appellant in this second appeal) shall refund the amount of sale consideration to the auction purchaser.

(3.) It is against the aforesaid order passed by the appellate court that this second appeal has been filed by the decree-holder.