RAM NARAIN Vs. NAWAB LUTFUDOWLAH BAHADUR

JUDGEMENT

(1.) These three appeals are by auction-purchasers against the Order of the executing Court, directing restitution of the respective properties purchased by them. F.A. No. 59/1 of 1952-53 and C.R.P. No. 172 of 1952-53 are by auction-purchaser Ramnarayan, who purchased house No. 2398 situated at Begum Bazaar, in execution of the decree in O.S. No. 1 of 1341 -F. (E.P. No. 13 of 1345-F). obtained by Nawab Lutfudowlah against Seth Chandmal Dadha. F.A. No. 64/1 of 1952-53 and C.R.P. No. 170/4 of 1952-53 are by auction-purchaser Gokul Das, who was the purchaser of house Nos. 6654 and 6658 situated in Maharaj Gunj in execution of the same decree. C.M.A. No. 258 of 1958 is by the auction First Appeal Nos. 59/1 and 64g of 1952-53 and purchaser, P. Ramaswamy, who having died, his legal representatives were brought on record. This is in respect of the purchase of house No. 3826 situate in Chudi 'Bazaar, Hyderabad, in execution of the decree aforesaid.

(2.) It may be stated that in execution of the decree obtained by Nawab Lutfudowlah against Chandmal Dadha, the original decree-holder and the judgment-debtor having died, their legal representatives were subsequently brought on record. The auction-purchasers purchased certain properties which were mortgaged to the decree-holder. After the sales, the auction-purchasers having paid the amounts, all of them obtained possession of the respective properties purchased by them. The judgment-debtor filed an appeal against the order confirming these sales, in the High Court, which appeal was heard by a Bench. The Bench allowed the appeal of the judgment-debtor on 21st Sherewar, 1352-F. (corresponding to 28th July, 1943) holding that by reason of the judgment-debtor not having notice of the 'sales and the fact that there was a second mortgage not having been shown in the citation proceedings, the sales were irregular and must be set aside. Against'this order of the High Court, the decree-holder's representative filed an appeal to the then State Judicial Committee of Hyderabad. When the appeal came up for hearing, it was found that the representative who filed the appeal having no longer a right to represent him, and his successor not having been brought on record, a Full Bench of the Judicial Committee dismissed the appeal as having abated, on 20th Bahman, 1357-F. (corresponding to 20th December 1947). It may here be stated that the opinion of the members of the Judicial Committee was only an advisory opinion and had not the force or effect unless it was sanctioned by H. E. H. the Nizam. H. E. H. the Nizam, by his Firman dated 10th Zamadi-ul-awal, 1367-H. corresponding to 28th Ardibehest, 1357-F (28th March, 1948) approved and dismissed the appeal with costs. The interim orders which were issued in the appeal were also directed to be of no effect. Thereafter the decree-holder filed an application, the date of which is not apparent from the records, under sub-section (2) of section 403 of the Hyderabad Civil Procedure Code, corresponding to Order 22, rule 9, Civil Procedure Code, for bringing Rai Barkat Rai on record in place of Nawab Akeel Jung Bahadur, the deceased. This application was dismissed on 21st Farwardi, 1358-F. corresponding to 21st February, 1949, by the President of the Judicial Committee, who was also the Chief Justice of the High Court, in these words :

(3.) After this, the judgment-debtor applied for full satisfaction being recorded on 4th October, 1950, which was accordingly recorded on that date by the Original Side of the High Court. About an year thereafter, the judgment-debtor filed an application on 2nd July, 1951, for restitution of the property sold in the auction and for possession of the same. The auction-purchasers filed counters objecting to these proceedings, firstly on the ground that they were not parties to the order setting aside the sales and as such, no order for restitution can be made ; secondly, that the application was barred by limitation, having been presented three years after the date of the setting aside the sale, and thirdly, that there are no equities to set aside the sale, the auction-purchasers, subsequent to the purchase of the properties, having improved the properties and spent a considerable amount thereon. The executing Court ordered this application, by applying Article 183 of the Indian Limitation Act, which prescribed a limitation of 12 years, equating the order of the Judicial Committee of the State to that of the Supreme Court. It also held that the auction- purchasers are estopped from raising any objection against the validity of the decisions of the High Court and the Judicial Commttee, and consequently directed restitution under section 151, Civil Procedure Code. It is against this order that the appeals and the revisions have been filed.