LAWS(ALL)-1979-4-30

KANDERP NARAIN SINGH Vs. GANGA PRASAD

Decided On April 02, 1979
KANDERP NARAIN SINGH Appellant
V/S
GANGA PRASAD Respondents

JUDGEMENT

(1.) THE respondent No. 1, Ganga Prasad had filed a suit for recovery of money against respondent No. 2. That suit was decreed on 22-5-1971 and then he applied for execution of the same by attachment of house of the respondent No. 2. It was done on 11-10-1971 and sold on 15-7-1972. It, however, so happened that the appellant in another proceedings of auction by the Collector had purchased this very house on 4-3-1971, i. e., even prior to the passing of the decree in the suit filed by respondent No. 1. He, therefore, filed an objection under Section 47, C. P. C. that the house was not saleable in execution of the decree against the respondent No. 2 who was no longer its owner, A preliminary objection was raised by the decree-holder-respondent No. L that the appellant not being a party to the decree, nor being the repre sentative of the judgment-debtor, was not entitled to file objection under Sec tion 47, C. P. C. and proper remedy for him was to file objection under Order 21, Rule 58, C. P. C. This objection was upheld and so the objection filed by the appellant was dismissed as not maintainable. THE first appeal filed by the appellant also met the same fate. In this appeal it is again contended that the appellant was a representative of judgment-debtor within the meaning of that word in Section 47, C. P. C. and both the Courts below were wrong in holding to the contrary. He relies upon a number of cases, namely, Gulzari Lal v. Madho Ram 1904 I. L. R. 36 Alld. 447. New Empire Engineering Co. (P) Ltd. v. Birmo Devi 1961 A.L.J. 669, T. S. Mudaliar v. Meenakshi Ammal A.I.R. 1963 Mad. 144, Harnand Rai v. Debt Dutt Bhagwati Prasad A.I.R. 1973 S. C. 2423 and J. L. Arora v. 2V. E. Periara A.I.R. 1977 Delhi 12. This is not disputed that the appellant was not a party to the decree in execution of which the house in question was sold. He only claims himself to be representative of the judgment-debtor inasmuch as he had purchased the interest of the judgment-debtor in the house which is the subject of execu tion proceedings. THE word "representative" has, however not been defined in this sec-illustrations, Explanation I and II had been given. This is admitted that the case of the appellant is not covered by any of the two Explanations. But these Explanations are merely illustrative, then his case can also be considered under this section, As held in J.L. Arorav. M.E. Periaara (supra) (Para 8) the word, 'representative- given in this section has a much wider meaning than the words "legal representative" and it would, therefore, include not only legal representative but any representative-in-interest who claimed interest either by assignment, succession or otherwise. In Gulzari Lal v. Madho Ram (supra) also this Court held that there was no distinction between the case of a purchaser in an auction and that of purchaser by private arrangement. But this is not enough. THE other test necessary, as held in the rulings men tioned above, was that the devolution of the interest is such that the person who claimed that devolution is bound by the decree, so far as that interest is concerned. This test is not satisfied in this case. THE appellant had purchased the house in auction held by the Collector for sales tax arrears at a time when the house was not subject to any decree or to any interest of any other person, so that it could be bound the decree when that person sued the judgment-debtor for the same. In all the cases mentioned above, the property in which the interest was purchased by the purchaser was or would be subject to the decree in execution of which that question arose. In Gulzari Lal v. Madho Ram (supra) the house was subject to mortgage. In New Empire Engineering Co. (P) Ltd. v. Birmo Devi (supra) also the house was subject to mortgage and before the mortgage decree was passed, some one else had purchased that house in another auction. In T. S. Mudaliar v. Meenakshi Ammal (supra) also that property was subject to the charge of maintenance. THE Supreme Court case in Harnand Rai v. Debt 'Dutt Bhagwati Prasad (supra) was no another point. So these Tulings do not help the appellant at all. THE interest in the house had been purchased by the appellant at a time when it was no subject to any decree or to any charge or liability for which that house could be proceeded with. THErefore, the appellant was rightly held not to be representative of the judgment-debtor and as such he could not file any objection under Section 47, C. P. C. and his remedy was to file objection under Order 21, Rule 58, C. P. C. THE appeal is, therefore, dismissed with costs.