SUMER SINGH Vs. JAMUNI DEVI

JUDGEMENT

(1.) Heard learned counsel for the appellants and Sri M.S. Rathaur, learned counsel who has filed Vakalatnama on behalf of the respondents.

(2.) This is plaintiffs' second appeal. Original plaintiff Sri Sumer Singh since deceased and survived by appellant Nos. 2, 3 and 4 instituted O.S. No. 283 of 1998 against Brij Mohan since deceased and survived by respondent Nos. 1/1 to 1/4. The relief claimed in plaint was for cancellation of auction sale dated 4.8.1997 held in execution of decree passed in an earlier suit i.e. O.S. No. 35 of 1993 which had been decreed ex parte on 30.9.1993. In the said earlier suit the plaintiff-appellant was defendant. The earlier suit was decreed for recovery of Rs. 31,689.95/- with 18% yearly interest Thereafter, Execution Case No. 21 of 1994 was filed by Brij Mohan-plaintiff decree holder of the said suit (defendant in the suit giving rise to the instant appeal). In the said execution case about one acre agricultural land of the plaintiff (judgment debtor in the execution proceedings) was auctioned and purchased by Brij Mohan the decree holder It was stated in the plaint of the suit giving rise to the instant second appeal that in Execution Case No. 21 of 1994, notice under Order 21, Rule 66 was issued to the plaintiff (judgment debtor in the said execution case) on 28.3.1997 which he did not get The sale was also confirmed on 4.8.1997 (auction sale was held on 21.5.1997). The property was sold for about Rs. 40,000/-.

(3.) The defendant pleaded that against the ex parte decree passed in the earlier suit plaintiff (who was defendant in the earlier suit) had filed restoration application under Order 9 Rule 13, CPC, which was allowed on payment of Rs, 150/- as cost. However, the cost was not deposited hence restoration application was rejected. It was also pleaded that the land which was auctioned was already mortgaged with Bhumi Vikas Bank, Rasra, Ballia and with Central Bank, Rasra, Ballia and under order of the High Court, the defendant auction purchaser had to pay the loan of the plaintiff to the above banks and that thereafter auction purchaser had filed suit against the judgment debtor (plaintiff of the suit giving rise to the instant second appeal) for returning the mortgage amount which had been paid by him to the Bhumi Vikas Bank.