ABRAR AHMED Vs. BABULAL

JUDGEMENT

(1.) THIS revision under section 115 of the Code of Civil Procedure is directed against an order dated 8th May 1964 whereby the lower appeal Court modified an earlier order of the executing Court dated 18th August 1962 to the effect that the auction purchaser should be placed in symbolical possession of the house he had purchased except to the extent of the share of one Aulad Ahmad and directed instead that he should be placed in full possession (actual or constructive) of that house. By the same order the lower appeal Court dismissed two other appeals against the order dated 18th August 1962, one filed by the judgment -debtor and the other filed by six of the applicants. The judgment debtor alone has filed two further appeals, Miscellaneous Appeal Nos. 76 and 100 of 1964, against the order dated 8th May 1964. This order shall govern those two appeals also.

(2.) THE main facts of the case, which are not in contest, are these. In civil suit No. 109 of 1951 dated 21st July 1951, one Gopaldas bad obtained against Tufail Ahmad a decree for a sum of money. This decree was executed, a house belonging to Tufail Ahmed was in due course put to sale and it was purchased by Babulal. That sale was confirmed on 3rd March 1958 and a sale certificate was granted to him on 12th March 1958. Thereupon, he filed all application under Order 21 Rule 95 of the Code for delivery of possession. When the warrant for delivery of possession was sought to be executed, Abrar Ahmad (applicant 1) resisted delivery of possession. That led the auction purchaser to file an application under Order 21 Rule 97 of the Code complaining of the resistance. Abrar Ahmad was summoned, he filed his reply, issues were framed and the case was fixed for evidence of parties. Since they did not lead any oral evidence, the controversy was decided on the basis of the judgment in the partition suit No. 33 of 1951 which Abrar Ahmad and others had filed against Tufail Ahmad. On 7th November 1958, it was held that Abrar Ahmad claimed in good faith to be in possession of a half share of the house on his own account with the consequence that symbolical possession of the house to the extent of a half share only was given to the auction purchaser on 28th November 1959.

(3.) THE main question for consideration in this case is whether the order dated 7th November 1958 should be regarded as conclusive because the auction purchaser failed to institute, within one year of that date, a suit for setting aside the order. Rule 103 of Order 21 of the Code, which provides such a suit, reads: