VISHWANATH MAHARUDRA MATKARI Vs. JAN MOHAMMED

JUDGEMENT

(1.) A very interesting and rather important question of law arises in this Second Appeal. The question relates to the right of an auction-purchaser in a Court sale, who has purchased property but has found to the surprise that the judgment. Debtor had no saleable interest in the property that he (auctionpurchaser) purchased. The question is, whether he can proceed against the decree-holder and or judgment debtor for the recovery of the moneys paid by him for the purchase of the property in auction Normally speaking it would have been enough for me to refer to the Division Bench the judgment of this Court in Santimmappuv. Balbhim Co-operativr Credit Society, and allow the appeal. However. I find that certain aspect of the question which did not fall for consideration of the Division Bench remained undecided in the said decision presumably on account of the pecutial pleasings in tha case I find that without a decision being given on that aspect, the question falling for the consideration of the Court cannot realty be said to have been fully decided and this is what has propelled me to give a rather fulsome judgement on the case as a whole.

(2.) The facts of the case fall within a very narrow compass. For the sake of convenience I will rafer to the parties, with reference to their position in the original execution proceedings, that is say, as judgement debtor, decree holder and auction-purchaser Sometime before the year 1965 one Vishwanath had obtained a money decree against Moiz Gayastiddin, the judgment-debtor. In execution of the decree, he filled Darkhast No.2 It was he who allowed to put the house for auction knowing or believing it ot know that it was of Mahmoodabt and not of his. In my opinion, the suit of the plaintiff is fit to be dcreed against detendant No. 2 and hence issues Nos. 4 and 5 are decided into on the ?) affirmative. His suit is fit to be dismissed against the defendant No. 1 There is no need to go in detais how much amount was withdrawn by such of the defendants from the Court. The defendant No. 2 is liable to pay the whole of the suit amount to the plaintiff."

(3.) In the view taken by the learned trial Judge, he decreed the plaintiff's suit against the original judgment-debtor (defendant No. 2) to the extent of Rs. 4,025/- with costs. The suit against defendant No 1, the decree-holder, was dismissed with no order as to costs.