KABUL CHAND Vs. RAM PARSHAD

JUDGEMENT

(1.) This is a hard case, but the law must have its course. In the suit instituted by Ram Parshad for the recovery of Rs. 1896-13 6 a decree was passed against the Appellant Kabul Chand ex parte on 29-9-1998. The J.D brought a suit on 27-9-2003 (sic) to have that ex parte decree set aside, but remained unsuccessful in the trial & the first appellate Courts. His revision in the High Court was accepted on 25-8-1903 & the suit was ordered to be decided in merits. Before the ex parte decree was set aside by the order of the High Court one-fourth share in a shop situate in Narnaul belonging to the J.D. was, however, sold on 27-8-2002. That sale was confirmed on 28-9-2002. An application for setting aside the sale was made by the J.D. on 3-12-2002. In pursuance of the order of the High Court dated 25-8-2003, the money suit was tried on merits & dismissed. The Courts below have held the application filed by the J.D. on 3-12-2002 to be barred by time. The effect of the dismissal of the application for setting aside the sale is that the ex parte decree in favour of Ram Parshad which had been reversed by the High Court has been executed & satisfied & this has happened inspite of the fact that the plff's. money suit had been finally dismissed on 7-11-2003 In rejecting the present appeal I would be perpetuating the same hardship, but there is no other course. The share of the J.D. in the shop having been sold on 27-8-2002 & the sale confirmed on 28-9-2002, the executing Court had become functus officio so far as the satisfaction of the decree was concerned. The sale had become absolute & could not be reversed merely because there were certain glaring irregularities in the conduct of the sale or with regard to the deposit of the purchase money as contemplated by Order 21, Rule 84, Code of Civil Procedure. After the sale had been confirmed the executing Court ceased to exercise jurisdiction in the application & the title with regard to the property sold had passed on to the auction purchaser who is a stranger & is neither a representative of the D.H. nor of the J.D. Section 47, Code of Civil Procedure contemplates the determination of the question relating to the discharge or satisfaction of the decree as between the D.H. & the J.D. or their representative. The auction purchaser by no stretch of words can be regarded to be the representative of either the D.H. or of the J.D. Strictly speaking, therefore, the provisions of Section 47, Code of Civil Procedure cannot be invoked by a J.D. for relief against a stranger auction purchaser under Section 47, Code of Civil Procedure. In this case the D.H. is not the auction purchaser himself but a different person who has got the property at a court auction & has acquired a valid title which cannot be invalidated by recourse to proceedings under Section 47, Code of Civil Procedure. An objection under Section 47, Code of Civil Procedure cannot be taken after confirmation of the sale. This rule has been accepted & approved in Ramchandar V. Sarupa, 1939 AIR(Lah) 113 Kedar Nath V. K. Arunchandra Sinha, 1937 AIR(All) 742 Firm Wasti Ram Gurdittamal V. Ganeshi, 1939 AIR(Lah) 405; Gauri V. Ude, 1942 AIR(Lah) 153 Radha Kishan V. Hari Singh,1927 AIR(Lah) 337 Ramaswami Konan v. Kulandiavelu,1922 AIR(Mad) 63 For two reasons, therefore, firstly, because executing Court had ceased to exercise jurisdiction in the execution application when the J.D. applied for setting aside the sale & secondly, because the matter in dispute was not between the D.H. & the J.D. or their representatives, the present application is not maintainable. If so advised & if limitation permits, the J.D. may institute a suit for the relief that he has claimed in his application under Section 47, Code of Civil Procedure. I, therefore, dismiss the appeal but leave the parties to bear their own costs. The case is certified to be fit for appeal to a Division Bench.