M MALLESU Vs. K MOHD HUSSAIN

JUDGEMENT

(1.) The revision petitioner is the decree-holder-auction purchaser. This application is filed questioning the order passed by the lower court refusing to direct the judgment-debtor-respondent to pay to the petitioner the poundage amount collected at the time of the sale held by the Court.

(2.) The brief facts of the case are as follows : The property whichwas brought to sale was admittedly partnership property of a firm in which there were two partners. The creditor obtained a money decree and brought the properties to sale. As the property was partnership property, law required the procedure under Order XXI, Rule 49 to be followed. Instead of following the same, the decree-holder got the properties sold. Before the same was confirmed, the judgment-debtor-respondent approached this Court, and at that stage, the respondent took notice in the High Court and then applied in the lower Court for advancing the date of sale and the date was advanced and sale was held. In the sale, the decree-holder became the auction-purchaser. The matter came up for final hearing before me, and I declared in my judgment rendered in Ranga Reddy vs. Mallesh (in C.R.P. 3458/85 dated 23-7-1986) that the sale was a void sale, inasmuch as the same was contrary to the provisions of Order XXI, Rule 49 of the Code of Civil Procedure.

(3.) Thereafter, restitution had to follow, on the basis that the salewas void. It was at that stage that the decree-holder-auction purchaser filed the present petition for refund of the poundage, which was approximately in a sum of Rs. 24,000/-. He impleaded only the present-respondent partner (or his legal representatives) as parties in the Execution Application, but not the other partner, who had supported the sale earlier. The court below refused to direct the respondents to refund the poundage amount. The Court below thought that the petitioner being responsible for the illegal sale, cannot ask for refund of the same from the judgment-debtor. It is against this order that the present revision has been filed.