RAMESH KUMAR Vs. BUDH RAM SHARMA

JUDGEMENT

(1.) THIS second appeal purporting to be under Section 47 of the Civil Procedure Code is by Ramesh Kumar who had filed an objection under Rule 58 of Order XXI. Civil Procedure Code Questioning the attachment of a house in execution of a simple money De cree in favour of Narendra Deo against Jai Jai Ram.

(2.) THE objection under Rule 58 of Order XXI was that the objector and not the judgment-debtor was the owner of the house attached. This objection was preferred on 21-9-1968. The ex ecuting court, however, did not stay the execution sale which had been already advertised to be held on 23-9-1968. The sale was held on the day fixed, that is on 23-9-1968. and the highest bid was that of Budhram Sharma which was accepted by the court on 25-9-1968. The objection of Ramesh Kumar under Rule 58 of Order XXI was disallowed by the executing court on 14-4-1970. Before the sale could be confirmed by the court Ramesh Kumar filed a suit under O. XXI. R. 63 for declaration of his title in the house sold. To this suit only the judgment-debtor and the decree-holder were impleaded as defen dants. The auction purchaser Budhram Sharma was not made a party. On op position of Ramesh Kumar the attempt by Budhram Sharma. the auction pur chaser, to be impleaded as defendant failed. There was a compromise between the parties and the suit was decid ed in terms of the compromise on 20-10-1970 by which the title of Ramesh Kumar to the house sold in execution of the decree was recognised. It appears4 while the said suit was pending the judgment debtor paid the decretal amount to the decree-holder and that payment was duly certified by the executing court by an order dated 8-8-1970 but as the sale had not been confirmed by the court by that time, it was further ordered that the certifica tion would not prejudice the rights of the auction purchaser, if any, acquired under law. Thereafter by an order dated 21-12-1970 the executing court struck off the execution in full satisfac tion and set aside the sale dated 23-9-1968. Bud'hram Sharma, the auction purchaser, filed an appeal against the said order which was allowed and the sale in his favour was confirmed by the lower .appellate court by its order dated 27-4-1971. It is against this order that Ramesh Kumar the objector claimant has come up in appeal.

(3.) SRI Raiaram Agarwal, learned counsel appearing for the appellant, rely ing upon the provisions of the relevant rules of Order XXI as amended by our High Court submitted that the objection of the appellant under Rule 58 of Order XXI would stand allowed, the appellant having succeeded in the suit under Rule 63 of Order XXI and the very basis, that is the attachment of the house which led to the sale in execu tion, having disappeared, no further question arose of the confirmation of the sale. Reliance was placed by the learned counsel on the decision of a learn ed Single Judge of the Madhya Bharat High Court in the case of Keshav Narain v. Ghasi Ram, AIR 1956 Madh Bha 226. Learned counsel assailed the view taken by the learned Judge of the court below that the auction purchaser is a neces sary party in a suit under Rule 63 of Order XXI and if he was not impleaded in such a suit the decree passed in the suit would not be binding on him and he was entitled to have the sale con firmed in his favour there being no objection under Rr. 89-91 of O. XXI. as legally erroneous. Relying upon a deci sion of the Patna High Court in Kali Dayal v. Umesh Prasad, AIR 1922 Pat 63 the learned counsel urged that the auction purchaser is the representative of judgment-debtor and will be bound by previous litigation between iudgment-debtor and a third person, hence the auction purchaser would be bound by the decree in the suit filed by Ramesh Kumar under Rule 63 of Order XXI wherein it was declared that Ramesh Kumar was the owner of the attached house and not the judgment debtor Jai Jai Ram. It was further urged that the conse quence of the decree in that suit was that the objection of Ramesh Kumar under Order XXI. Rule 58 stood allow ed and the house stood released from attachment, the subsequent sale held in execution, therefore fell through. In support of the proposition that an auc tion purchaser at a sale held in execu tion of a simple money decree is a re presentative of the judgment- debtor the learned counsel cited Gulzari Lal v. Madhoram. (1904) ILR 26 All 477 (FB); M. Ohimpiramma v. Rabbisetti Subra-manyam, AIR 1957 Andh Pra 61 (FB) and Mst. Suraj Dei v. Gulab Del, AIR 1955 All 49 (FB). On the strength of a decision of Division Bench of this Court in the case of Ghasi Ram v. Mangal Chand. (1905) ILR 28 All 41 the learned counsel submitted that to a suit by a claimant to establish that the property attached belonged to him only the de cree-holder would be a necessary party.