LAXMIKANT RAO Vs. BHIKALAL

JUDGEMENT

(1.) THIS appeal has been filed by the judgment -debtors under Section 47 of the Court of Civil Procedure.

(2.) THE facts of the case are that in Civil Suit No. 1 -B of 1954, Respondent. Bhikulal obtained a money decree on 9 -11 -1955 against the Appellants. He took out execution and a house belonging to the Defendants was attached. The judgment -debtors claimed the value of the house to be more than Rs. 30,000/. It was actually sold on 22 -4 -1961 for Rs. 37,201/ Long before the commencement of the proceedings for sale of the house on 1 -3 -1960, the Appellants filed an application under Section 11 of the C. P. Moneylenders Act praying for instalments being granted to pay the decretal amount. The Court required the judgment -debtors to deposit Rs. 1,000/ before 16 -3 -1960 and ordered that in case the deposit was not made, further proceedings will not be stayed. The judgment -debtors deposited the amount on 16 -3 -1960 and further proceedings were stayed. Subsequently on 1 -3 -1961, the lower Court rejected the judgment -debtors' said application without any enquiry. The Defendants came up in appeal to the High Court. That appeal was registered as Miscellaneous Appeal No. 39 of 1961 and was decided by Mr. Justice P. K. Tare on 18 -4 -1961. The operative portion of the order is as follows:

(3.) SHRI Dharmadhikari, learned Counsel for the Respondent, has raised a preliminary objection. He contends that as the auction purchaser has not been made a party to this appeal, the appeal is not properly constituted and is not tenable. His argument is that Explanation to Section 47 of the Code of Civil Procedure as amended by Act, 66 of 1956 makes a purchaser in execution of the decree 'a party to the suit' for the purposes of this section. The controversy as to whether the sale suffers from any defect or lacuna and, therefore is void or voidable, cannot be decided in the absence of the auction -purchaser whose interests are bound to be vitally affected if the sale is set aside. Shri P. R. Padhye, on the other hand, contends that the sale which was made by the Court was a complete nullity having been made in flagrant violation of the order passed in appeal (Misc. Appeal No. 39 of 1961) by the High Court. He urges that the sale being nullity ab initio did not create any right, title or interest in the purchaser and, therefore, it was not necessary to implead him. He further emphasized that under Order 21, Rule 92 (Cl. 2) it is specifically provided that 'no order shall be made unless notice of the application has been given to all persons affected thereby'. But, no similar provision was made in Section 47. Shri Padhye relied upon Shan Kumar v. Lachmi Kanta,, AIR 1941 Pat 566 where it has been laid down: