CHANDRAWATI Vs. T KALLU

JUDGEMENT

(1.) THIS revision has been filed against the appellate order and proceedings arising out of an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the order of sale made under Section 2 of the Partition Act.

(2.) A suit for partition of a house was filed. The plaintiff applied that as the house was too small to be parti tioned it should be sold and proceeds distributed under Section 2 of the Par tition Act. The Munsif on that applica tion directed the sale of the house and the house was sold in auction. Smt. Chandravati the present applicant, pur chased the property. On coming to know of the sale the defendants applied under Order 9. Rule 13 of the Code of Civil Procedure for setting aside the order of sale. Learned Munsif dismissed the application holding that the application was not maintainable as preliminary and final decrees had already been pass ed in the case. The defendants went up in appeal. The learned District Judge reversed the finding of the trial Court, held that the application was maintain able and set aside the order of sale as well as the sale itself and directed the cancellation of the sale certificate. Against that order the auction purchaser has now come up in revision.

(3.) LEARNED counsel has lastly contended that the Court could not di rect either setting aside of the order after the sale had been confirmed or set aside the sale itself. In support of his contention learned counsel has plac ed reliance on the case of Janak Raj v. Gurdial Singh. (AIR 1967 SC 6081. That was a case in. which, an ex parte money decree bad been passed end in execu tion of that decree the house of the judgment-debtor was sold. The court held that even after the ex parte de cree was set aside the sale could not be set aside because it had been held in accordance with law. A sale which was held in accordance with the provi sions of the Code of Civil Procedure could not be set aside merely because the ex parte decree had subsequently been set aside. The court also took notice of the fact that the judgment-debtor was not without remedy and he could have got remedy by taking resort of the provisions of Order 21. Rule 89, C.P.C. On all these circumstances the court held the sale to be valid. The circumstances of this case are entirely different and the law laid down in Ja-nak Raj's case cannot have any applic ability to the facts of this case. Here the sale was not being held in execu tion of any decree. but the order of sale was by itself a decree. Sale under Section 2 of the Partition Act is not something extraneous to any other pro ceedings like a decree so that the fall of those proceedings may not affect the sale. Here the proceedings for sale are inde pendent proceedings in which the final order of sale itself amounts to a de cree. In the present case the property which was to be the subject-matter of partition has itself been sold for the purpose of partition. There is also no alternative remedy as is available to a judgment-debtor when the sale is made in execution of a decree. Hence the ratio of the decision in Janak Rai's case cannot be made applicable to the facts and circumstances of the present case