ABDUL GHANI Vs. MAHENDRA KUMAR AND OTHERS

JUDGEMENT

(1.) THE facts of this execution second appeal lie on a narrow ambit. The decree-holder-respondent No. 2 is the father of the auction-purchaser-respondent No. 1. The former is hereinafter referred to as the decree-holder and the latter as the auction-purchaser. The decree-holder obtained a money decree against the judgement debtor-appellant. The said decree was an ex parte decree. The judgement-debtor applied under O.9 R.13 of the Civil P.C. for setting aside the said decree. While the restoration application was still pending, the decree-holder applied for the execution of the decree by attachment and sale of the Bhumidhari land of the judgement-debtor. In the said execution case, about 24 bighas of land belonging to the judgement-debtor was attached and was purchased by the auction-purchaser for a sum of Rs. 5,000/- and the sale was duly confirmed. Thereafter, the ex parte decree was set aside by the trial court.

(2.) AFTER the ex parte decree had been set aside the judgement-debtor applied for restitution under S.144 read with S.47 of the Civil P.C. According to the judgement-debtor, the property had been purchased by the decree-holder himself in the name of his son. He further pleaded that the auction-purchaser was not a bona fide purchaser for value. That auction-purchaser repelled the said contention. The execution court allowed the objection and set aside the sale in favour of the auction purchaser and granted the restitution claimed by the judgement debtor. The trial court inter alia held as follows :-

(3.) ON behalf of the appellant, two points have been pressed. Firstly, it has been contended that the lower appellate court has completely overlooked the addition of the Explanation to S.47 of the Civil P.C. by the Amending Act of 1956. In other words, his contention was that by addition of the said Explanation, the distinction which was previously made by the courts between a purchaser who was himself a decree -holder and a stranger auction-purchaser has been completely obliterated and the said decisions are no longer good law. It was next contended that it was not proved that the auction-purchaser was a bona fide purchaser for value. It was submitted that the execution court had recorded a categorical finding that the actual purchaser was the decree-holder himself who had supplied the money and that the lower appellate court has erred in reversing the order of the execution court without setting aside this finding. I shall first proceed to consider the law before the amending Act of 1956 and shall then examine the validity of the submission of the learned counsel that the said law no longer holds good after the amendment.