ANANDA CHANDRA MOHAPATRA Vs. JUDHISTHIR JENA AND ORS.

JUDGEMENT

(1.) THIS is a revision against the order of the Subordinate Judge of Puri setting aside the sale of certain properties on 15 -12 -1959 in Execution Case No. 388 of 1956. The material facts are as follows: The Petitioner brought a suit against the judgment -debtor and attached some property before judgment on 17 -3 -1954. While the said attachment was pending, the opposite parties in some other suit against the judgment debtor obtained a decree and in Execution of the same (Execution Case No. 28 of 1957) sold the very same property and purchased the same on 2 -1 -1959. After purchase they also obtained delivery of possession in a short time. The suit property consists of a residential house in the town of Puri not far from the houses of both parties. The Petitioner however applied to the court for sale of the very same property in execution of his own decree without mentioning the fact that that property had been sold by the same court on 2 -1 -1959 and purchased by the opposite party. The court also was not aware of its own previous spell and hence the Petitioner's application was allowed and the property was actually sold on 15 -12 -1959. Thereupon on 15 -1 -1960 the opposite parties filed an application before the Court for setting aside the second sale on the main ground that as the property had already been sold away by the court by its first sale dated 2 -1 -1959, the judgment -debtor had no interest in the property whatsoever there after and that the second sale in favour of the Petitioner was in -valid. The lower court registered Misc. Case No. 9 of 1960 and both parties led evidence as to whether there was actual delivery of possession in pursuance of the first sale. The court came to a finding of fact that there was delivery of possession soon after the first sale.

(2.) MUCH argument was advanced before the lower court regarding the maintainability of the opposite parties' application for setting aside the sale on the main ground that if they were aggrieved by the second sale, they could have applied to the court for setting aside the sale under Order 21, Rule 89 Code of Civil Procedure. On behalf of the Petitioner however it was urged that the second sale was made by the court in error inasmuch as the same court had sold the very same property on an earlier occasion and that any error committed by the court could be corrected by it in exercise of its inherent powers. The court noticed some conflict of decisions on this question, but observed that if the attention of the court had been drawn before the second sale to the fact that there was an earlier sale of the same property on 2 -1 -1959, it would not have put the property to sale on the second occasion. The court therefore thought that there was a mistake committed by it which could be rectified in exercise of its inherent powers. Hence it set aside the sale.

(3.) THE true scope of Section 151 Code of Civil Procedure has been recently explained by their Lordships of the Supreme Court in Manohar Lal v. Seth Hiralal : A.I.R. 1962 S.C. 527 where the majority of the Judges seem to have made a slight departure from the earlier view on the subject. They have stated in para 23 as follows: