GANGA Vs. DEPUTY DIRECTOR OF CONSOLIDATION BALLIA

JUDGEMENT

(1.) In an ex parte decree obtained by opposite party No. 5 against opposite party No. 4 the property in dispute was sold. It was purchased by decree holder himself. Subsequently an application for setting aside the ex parte decree was made which admittedly after remand etc. was allowed and ultimately the decree was set aside and the suit in which an ex parte decree was passed has also been dismissed. While the suit was pending the property was attached before judgment and opposite party No. 4 during attachment sold the land in dispute in favour of petitioners. The dispute before consolidation authorities was between petitioners and opposite party No. 5 who are decree holder auction purchasers. All the three consolidation authorities accepted the claim of the decree holder auction purchaser obviously because the ex parte decree was standing in his favour. In view of subsequent event that is setting aside of ex parte decree and dismissal of suit filed by opposite party No. 5 the sale in favour of opposite party no. 5 should be held to have fallen automatically,

(2.) Learned counsel for opposite party relied on Janak Raj. v. Gurdial Singh (AIR 1967 SC 608) and urged that setting aside of the decree did not affect the right of the decree-holder auction purchaser. The argument proceeds on misconception of the Supreme Court decision. In that case a distinction was drawn in decree holder auction purchaser and outsider purchaser. It was held that purchases by decree-holder were subject to decision of suit but the sale in favour of outsider was final as stranger auction purchaser had to be protected against vicissitude of the fortunes of suit. It is thus clear that the principle laid down applies to third person auction purchaser and not to decree holder auction purchaser.

(3.) It was then urged that even assuming that opposite party had no right no writ can be issued in favour of petitioner as he had purchased the property during attachment before judgment. The argument again is devoid of any substance. Under Rule 9, Order 38 the attachment comes to an end after dismissal of the suit. Parties are relegated to the same position and the dismissal of the suit shall be deemed to operate from the date of filing of the suit. Sale therefore made during attachment shall be deemed to have been made as if there was no attachment, in any case it is not in the mouth of decree holder to shout against sale made by judgment debtor in favour of petitioner during attachment.