SRINATH Vs. BASDEO TEWARI AND ANOTHER

JUDGEMENT

(1.) This is an application in revision by an auction purchaser arising out of rather peculiar circumstances. The circumstances in which this application has arisen were these: One Basdeo obtained a decree sometime ago and some property of the judgment debtor was attached in execution of that decree and put up for sale. The property was actually auctioned on 6 -12 -1952. Sri Nath, the applicant, purchased the property for a sum of Rs. 4,100 and he deposited the entire purchase money in court. It appears that the property that was auctioned as one property was really made up of two separate items of property, namely, two distinct houses, but somehow the sale proclamation showed the property advertised for sale as one item of property. After the sale a suit was filed by Behari Lal and that was Suit No. 470 of 1952. This suit by Behari Lal was for a declaration that the property, which had been sold at the auction of 6 -12 -1952, was not so saleable. Behari Lal obtained an injunction which operated in respect of the confirmation of the sale which had been made in favour of Sri Nath. There were yet two other suits filed, one, Suit No. 80 of 1952, and the other, Suit No. 81 of 1952. These two suits related to the two items of property which were included in the sale which took place on 6 -12 -1952, and in respect of which sale Sri Nath became the auction purchaser. One of the two houses had been attached in respect of the decree in Suit No. 80 of 1952. This attached house was auctioned on 1 -5 -1953, and this auction sale was confirmed on 3 -6 -1953. In respect of the decree in Suit No. 81 of 1952 the other house was auctioned on 1 -4 -1953 and its sale was confirmed on 23 -5 -1953. Finding this situation facing him, the auction purchaser Sri Nath applied on 22 -4 -1953, that the auction purchase in his favour appeared to have been made without there being any subsisting title to the property in the judgment debtor and he, therefore, wanted the sale to be set aside and the money refunded to him. It may here be pointed out that there was an injunction staying confirmation of the sale in favour of Sri Nath in respect of Suit No. 470 of 1952, which, I am told, was a suit filed by the cousin of the judgment debtor. The injunction was obtained after the property had been sold at auction in favour of Sri Nath.

(2.) On 11 -7 -1953, the court allowed the application of Sri Nath for refund: this order was made after due notice both to the decree holder and the judgment debtor.

(3.) On 7 -8 -1953, the decree holder made an application that the auction purchaser be directed to re -deposit the money which he had taken away, namely, the sum of Rs. 4,100. The auction purchaser objected to this direction being given and he reiterated his plea that the judgment debtor had apparently no saleable interest at the time when the property was auctioned in his favour and, therefore, the sale in his favour could not stand. The auction purchaser further contended that once the court had permitted the money to be withdrawn by the auction purchaser it could not subsequently' make an order calling upon the auction purchaser to re -deposit the same. On 21 -11 -1953, the executing court overruled the objection of the auction purchaser and directed him to re -deposit the money within a fortnight failing which it held that the property of the auction purchaser was to be attached.