MOOLCHAND Vs. BISHWANATH PRASAD TILBHAN DESHWAR AND OTHERS

JUDGEMENT

(1.) This case has come to us on a reference made by Mr. Justice Sahai. It is an execution first appeal on behalf of a judgment-debtor. The facts, which have led to it, can be briefly stated. Smt. Panna Devi obtained a decree against Mool Chand, the appellant, from a court in the State of Bengal. The decree was transferred for execution to the Court of the Civil Judge of Banaras and two houses of the Judgment-debtor were attached. They were directed to be sold and the Amin sold the houses by public auction. The highest bid offered in respect of the first house No. 37/152 was Rs. 3,600 and that for the other house No. 37/153 was Rs. 3,500. These highest bids had been offered by the appellant. The Amin accepted these bids subject to the final acceptance of the Court and required the appellant to deposit one-fourth of the purchase money on the spot. That was done. The court impliedly accepted the bids when it approved of the report of the Amin and then the balance of the purchase money was deposited in due course within time. The appellant thus became the auction-purchaser of the two houses. By that time, however, the, judgment-debtor had applied for the setting aside of the decree itself and had obtained an order for the stay of the confirmation of the sale. The sale could not, therefore, be confirmed though as it had been held on the 15th Oct. 1951 it was due for confirmation on the 15th Nov. 1951. On account of the stay order the confirmation remained stayed for about a year. Then the application for setting aside the decree having been dismissed for default the stay order was withdrawn. The Court then fixed the 9th Sept. 1952 for confirmation of the sale. On that date the judgment-debtor appeared and made an application praying that he be allowed to deposit the decretal amount along with the five per cent. of the purchase price for the auction purchaser. Though the application did not say that it was being filed under Or. XXI, R. 89 of the C.P.C. it appears to have been intended to be filed under that provision and in his memorandum of appeal the appellant has referred to it as such. The Court directed the judgment-debtor to deposit the amount at his own risk and the amount was deposited. The deposit was, however, not unconditional and was made after the time for making an application under Or. XXI, R. 89, C.P.C. had expired. It was prayed in the application that the money should he given, if at all, to the decree-holder only after taking security. The judgment-debtor, who had filed this application, was directed to pay the process fee and file notices so that notices could be issued to the decree-holder and the auction-purchaser. The date fixed for the hearing of the application of the judgment-debtor was the 4th Oct. 1952. When the case was taken up the judgment-debtor as well as the decree-holder and the auction-purchaser were absent. The executing Court, therefore, passed an order saying:

(2.) When the appeal came up for consideration before Mr. Justice Sahai he found that three important questions were involved which deserved consideration by a Division Bench. He, therefore, referred the case to a Division Bench. The three questions which he thought arose in the case were:-

(3.) It will be noticed that on the 4th Oct. 1952 two entirely separate proceedings were pending before the learned Civil Judge. One was the execution case itself. The other was the application which the judgment-debtor had made for setting aside the sale, presumably under Or. XXI, R. 39, C. P.C. The latter application had been registered and notices had been ordered to be issued to the decree-holder and the auction purchaser in respect of it. The judgment-debtor, who had made the application, had been directed to take the necessary steps. On the 4th Oct. 1952 the learned Civil Judge dismissed the execution application in default though the decree-holder was not required to do anything for that date and was not, in fact in default in any manner. The order was thus obviously wrong. Both the decree-holder and the Judgment-debtor have allowed that wrong order to become final as they did not challenge it by appeal or revision. If an order is allowed to become final it is binding on the parties whether it is right or wrong. It cannot, in our opinion be said that because the sale had been held and was awaiting confirmation the executing Court had no jurisdiction to dismiss the execution application. The Court was seized of the execution case and could deal with it rightly as well as wrongly. A wrong order is not necessarily an order without jurisdiction.