HADIBANDHU BEHRA Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) Defendant No. 5 obtained a money decree against the heirs of Banchanidhi Ota in S. C. C. Suit No. 15/55 of 1955 in the court of the S. C. C. Judge, Baripada and levied execution of the money decree in execution case No. 19 of 1960. On 20th of June, 1961, the plaintiff purchased the property put to sale in that execution case as auction purchaser. On 16-9-1961, a sale certificate was issued in favour of the plaintiff (Ext. 1) on confirmation of the sale. On 9th of March, 1962, the plaintiff claims to have taken delivery of possession through court under Exts. 3 and 3/a and he was put into joint possession along with defendant No. 2. The third defendant on the basis of purchase of half share of Banchanidhi Ota of the disputed property under a registered sale deed of May, 1959, laid claim under Order 21, Rule 58 of the Code of Civil Procedure. The claim was dismissed on 8-4-1961 (Ext. C). A suit under Order 21, Rule 63 of the Code of Civil Procedure was filed impleading the judgment-debtor Banchanidhi and the plaintiff-auction-purchaser was not impleaded. The suit was decreed on 5-9-1962. The defendant No. 5 (decree-holder) filed an appeal which was eventually dismissed.

(2.) The plaintiff instituted a suit for partition claiming half share on the basis of the sale certificate (Ext. 1). The defence raised was that there was a previous partition between Banchanidhi and Udayanath (defendant No. 2) amicably in 1941. Banchanidhi sold away the disputed property to the third defendant by a registered sale deed and had put her in possession. The third defendant filed a claim under Order 21, Rule 58 of the Code of Civil Procedure in the execution case. The petition was dismissed for default and the suit under Order 21, Rule 63 filed by her was eventually decreed. Therefore, the plaintiff acquired no title to the disputed property on the basis of the purchase. The suit, therefore, was not maintainable.

(3.) The trial court found that the auction-purchaser was not a necessary party and the third party claimant was not obliged to implead the auction-purchaser in the suit under Order 21, Rule 63 of the Code of Civil Procedure. The sale to defendant No. 3 by Banchanidhi being prior to the auction sale the latter sale conveyed no title to the auction-purchaser as the judgment-debtor had no saleable interest for being conveyed by auction sale. He took the view that Section 144 of the Code of Civil Procedure was not applicable. He placed reliance on two Bench decisions of the Patna High Court in the case of Rameswar Lal v. Mt. Subdi, AIR 1938 Pat 468 and the case of of Mt. Bibi Umatul Rasul v. Mt. Lakho Kuer, AIR 1941 Pat 405. The learned, Appellate Judge also took the same view. Accordingly the courts below on a finding that the auction sale conveyed no title to the auction-purchaser negatived relief to the plaintiff. This second appeal is directed against the affirming decision of the learned Additional Subordinate Judge of Baripada.