GURDIAL SINGH Vs. SOWARAN SINGH AND ANR.

JUDGEMENT

(1.) THIS Execution Second Appeal is directed against the judgment, dated 25th of January, 1968, passed by the Additional District Judge, Jullundur, who confirmed the judgment of the trial Court dismissing the application of the judgment -debtor Gurdial Singh Appellant under Sections 144/151 of the Code of Civil Procedure for restitution of a house purchased by Janak Raj, auction purchaser Respondent on 16th December, 1961 at a public auction on 16th March, 1962, for Rs. 5,100 in execution of a decree obtained by Sowaran Singh against the said Gurdial Singh.

(2.) THE facts of this case have a chequered history and have to be stated a little in detail. Sowaran Singh Respondent filed a suit against Gurdial Singh, judgment -debtor for recovery of Rs. 509.00 paise and obtained an ex parte decree on 27th February, 1961, for a sum of Rs. 519.66 paise. In execution of this decree the house in dispute was sold at a public auction and it was purchased by Janak Raj Respondent for Rs. 5,100. The judgment -debtor Gurdial Singh made an application for setting aside the ex parte decree which was actually set aside on 26th October, 1962, but in the meantime the house had already been sold on 16th December, 1961. It may be mentioned that the suit was also ultimately dismissed on 17th December, 1962. The sale was however, not confirmed by the executing court as the judgment -debtor got the proceedings stayed. It is not understood why the judgment -debtor did not get the sale of the house in execution of the ex parte decree stayed when he had moved for setting aside the same. The judgment -debtor also filed objections under Order 21 Rule 90 of the Code of Civil Procedure challenging the sale on the ground of material irregularity and fraud in publishing or conducting the same. He never applied to get the sale set aside under Order 21 Rule 89 on depositing in court 5 per cent of the purchase money for payment to the purchaser. The objections of the judgment -debtor Appellant were ultimately dismissed and Janak Raj auction purchaser applied for the revival of the execution proceedings which had been stayed and for confirmation of the sale. The judgment -debtor resisted the application for confirmation of the sale contending that the application for revival was not maintainable since the ex parte decree in execution of which the sale had taken place had been set aside and also because the auction -purchaser was in conspiracy and collusion with the decree -holder. It was, therefore, pleaded that in view of his conduct which lacked bona fides, the auction -purchaser was not entitled to have the sale confirmed in his favour. The sale was however confirmed on 31st August, 1963 by a Sub -Judge at Jullundur who over -ruled the objections of the judgment -debtor. Judgment -debtor preferred an appeal in the Court of Senior Sub -Judge there and that too was dismissed. A second appeal filed by him in the High Court was accepted by a learned Single Judge on 26th November, 1964 and the order of the executing Court confirming the sale in question in favour of the auction -purchaser was set aside. The auction -purchaser took the matter before the Letters Patent Bench which by its judgment, dated 24th December, 1965 dismissed his appeal. The sole question for determination before the learned Single Judge and the Letters Patent Bench was as to whether the sale in favour of Janak Raj auction -purchaser be confirmed under Order 21 Rule 92 of the Code of Civil Procedure or not. The Letters Patent Bench certified the case to be fit for appeal to the Supreme Court and the auction -purchaser's appeal there was decided on 8th November, 1966. The judgment of the Letters Patent Bench of this High Court was reversed and the order of the executing Court confirming the sale in favour of Janak Raj auction -purchaser was upheld. The Supreme Court judgment is reported as Janak Raj v. Gurdial Singh : A.I.R. 1967 S.C. 608. It was observed by their Lordships of the Supreme Court that the collusion as alleged by the judgment -debtor in resisting the application of revival of the execution proceedings and confirmation of sale was not substantiated. A few of the other observations in the Supreme Court judgment which are necessary for the decision of this case are quoted below in extenso - -

(3.) IN the opinion of their Lordships, it makes no difference whether the decree in execution of which sale had taken place is reversed before or after the confirmation of sale. It was also contended before their Lordships that because of the amendment of Section 47 of the Code of Civil Procedure, which added an explanation to Sub -section (3) of the said section making a purchaser at a sale in execution of a decree a party to the suit for determining all questions relating to the execution, discharge or satisfaction of the decree, the auction -purchaser was no longer a stranger and that restitution could be asked against him under Section 144 of the Code. Their Lordships in most unequivocal terms observed that no opinion was being expressed on this issue and nor was such a decision called for in the circumstances of this case at that time when the sole question before the Supreme Court was whether the sale should be confirmed or not. After the Supreme Court judgment confirming the sale in favour of Janak Kaj auction -purchaser, the judgment -debtor Gurdiai Singh made an application on 1st March, 1967, under Sections 144/151 of the Code of Civil Procedure to the executing court praying for restitution of the house on the ground that, the ex parte decree in the execution of which the sale was effected had been set aside and such a sale was, therefore, void and nullity entitling bin to restitution. In this application a prayer was also made that his previous application under Section 144 of the Code of Civil Procedure may be proceeded with further. It may be noted that the judgment -debtor had made an application earlier as well on 4th September, 1963, for a similar relief, but this application remained undisposed of. The final order on this application is dated 23rd January, 1965, and is in the following terms: