KAMLA PRASAD MISSIR Vs. CHANCHAL TEWARI

JUDGEMENT

(1.) These two Miscellaneous Appeals by the decree-holder have arisen, to all intents and purposes, out of one proceeding for execution of the decree-holder's decree for money. In Execution case No. 292 of 1951, land measuring I bigha 17 kathas and 2 dhurs was sold on the 7th of May, 1952, and by the said sale, which was confirmed on the 27th of June, 1952, the entire decree was satisfied. Some persons, claiming three-fourths interest in the land sold, ultimately succeeded in getting a decree in a suit instituted under Order 21 Rule 63 of the Code of Civil Procedure, and, in getting their three-fourths share of the land sold released from sale. Thereafter, on the 30th of April, 1958, the decree-holder filed Miscellaneous Case No. 129 of 1958 under Section 151 of the Code for permission to execute the decree for the balance amount, treating the sale as a good sale in respect of the four annas share of the judgment-debtor and wanted fresh execution to he levied for the balance of the proportionate amount of the decree remaining unsatisfied. According to the finding of the lower appellate Court, no notice was served on the judgment-debtor in this Miscellaneous case, but permission sought for bv the decree-holder was granted. On such permission being granted, he filed Execution Case No. 315 of 1958 on the 27th of June, 1958, for realisation of the three fourths amount of the decree which, according to him, remained unsatisfied. I may mention here that no steps were taken by the decree-holder for the setting aside of the sale held on the 7th of May, 1952, either for its being set aside in whole or in part. In Execution Case No. 315 of 1958, land measuring 1 bigha 5 kathas and odd belonging to the judgment-debtor-respondent was sold for a sum of Rs. 700/- on the 7th of October, 1958. The decree-holder obtained delivery of possession on the 26th of November, 1958. The judgment-debtor then filed two applications on the 22nd of December, 1958, one for recall of the order dated the 24th of May, 1958, by which permission was given to the decree-holder to levy fresh execution for realisation of the balance of the amount in Miscellaneous Case No. 129 of 1958, and the other for the setting aside of the sale. In these applications the judgment-debtor stated that neither any notice was served on him in Miscellaneous Case No. 129 of 1958, nor any notice or processes were served in Execution Case No. 315 of 1958. The appellate Cout has accepted this case and held that no notice or processes were served as alleged by the judgment-debtor. It has further accepted the case of the judgment-debtor that notice and processes were fraudulently suppressed, and the fraud became known to the judgment-debtor on the 26th of November, 1958, only when delivery of possession was effected on the property sold on the 7th of October, 1958. In that view of the matter, the lower appellate Court, has held that although the permission given to the decree-holder for starting the fresh execution case as also the execution case started was not without jurisdiction, and, therefore, not void, the petition of the judgment-debtor for setting aside the sale is not barred by limitation in view of the provisions of Section 18 of the Limitation Act. Hence the appeals by the decree-holder.

(2.) In my opinion, these appeals have got to fail for the simple reason that the effect of the decree in the suit instituted under Order 21 Rule 63 of the Code of Civil Procedure by the persons claiming twelve annas interest in the property sold on the 7th of May, 1952, was not setting aside the sale, either in part or in whole. This point is well covered by a Bench decision of this Court in Mt. Bibi Umatul Rasul v. Mt. Lakho Kuer, AIR 1941 Pat 405. In that case it was held that if in a proceeding under Order 21 Rule 58, or in a suit under Rule 63 of that Order, the entire property sold is released, the sale in its entirety goes, and the decree-holder can levy fresh execution. The Full Bench decision of this Court in Surendra Kumar Singh v. Srichand Mahta, ILR 15 Pat 308 : (AIR 1936 Pat 97), which was a case relating to the release of the entire property, was distinguished on the grounds mentioned at page 406 of the report. Nonetheless, it has been held, to quote a few lines from page 407, column 2, and 408 column 1 -

(3.) Mr. A.K. Roy, learned Advocate for the appellant, drew my attention to the following lines of the Patna amendment of Order 21 Rule 60 of the Code of Civil Procedure :