BENODE SAHU Vs. DILWAR JAMA KHAN

JUDGEMENT

(1.) This is an appeal under the Letters Patent from the decision of a Single Judge of this Court, dated the 28th January, 1948. The facts out of which the appeal arises may be shortly stated. The appellant before us obtained a decree for a sum of Rs. 266/- and . odd annas against the respondent on the 4th of November, 1943. The decree was put in execution in March, 1944, and on the 13th of August, 1944, certain properties of the judg- ment-debtor were sold and purchased by the appellant. On the 21st oi September, 1944, the sale was confirmed and on the 9th of October, 1944, the execution case was dismissed on full satisfaction of the decree. When the appellant asked for delivery of possession, he was resisted by the wife of the judgment-debtor, who preferred an objection under the provisions of Order XXI, Rule 100, Code of Civil Procedure. This gave rise to a miscellaneous proceeding, and the claim of the wife of the judgment-debtor was allowed on the 14th of February, 1945. Some two months after, on the 11th of April. 1945, the appellant applied for a iresh execu- tion of the decree, ignoring the sale which had taken place and the order dismissing the execution case on full satisfaction, passed on the 9th of October, 1944. The learned Munsif who dealt with the application in the first instance held that the appellant not having applied to set aside the sale under the provisions of Order XXI, Rule 91, Code of Civil Procedure within thirty days of the sale, a fresh execution petition was not maintainable. Against this order of the learned Munsif there was an appeal to the District Judge, who reversed the decision of the learned Munsif and held that the second application for execution was not hit by the provisions of Order XXI, Rule 91, or Rule 92, Code of Civil Procedure : therefore, he held that the second execution was maintainable. In second appeal Reuben J. (as he then was) reversed the decision of the learned District Judge, and restored that of the learned Munsif, holding that a second execution was not maintainable in the circumstances of the case.

(2.) Mr. K. D. Chatterji, appearing on behalf of the appellant, has contended before us that in view of the order passed in the proceeding under Order XXI, Rule 100, Code of Civil Procedure, the sale was in substance held to be ineffective; therefore, it was open to the appel-lant to levy a fresh execution of the decree. Learned Counsel has placed great reliance on two decisions of this court 'Radha Kishun Lal v. Kashi Lal', 2 Pat. 829 and 'Bibi Uma-tul Rasul v. Lakho Kuer', 20 Pat. 261. In 'Radha Kishun Lal's case', 2 Pat 829, the facts were these. Subsequent to the purchase of a certain property in execution of his decree by the decree-holder, a third person sued the auction-purchaser and the judgment-debtor for a declaration of his title to the property and for possession and obtained a decree. It was held that the effect of the decree in favour of the third person was to set aside the execution sale and revive the decretal debt, and that no formal order setting aside the sale was necessary. Mullick, J. with whom Bucknill, J. concurred, gave the following reasons in support of the decision :

(3.) In the case of 'Bibi Umatul Rasul' 20 Pat. 261 the facts were these : A decree for money was put in execution, and in execution of that decree certain properties were attached. Upon the attachment a claim was preferred by a third party under Order XXI, Rule 58, Code of Civil Procedure, but it was rejected. One rejection of that claim the sale of the attached property was held and the decree-holder became the auction-purchaser. The sale was duly confirmed and a note was made in the execution register that the decree was fully satisfied. In the meantime, within the period of limitation provided by law, the claimant instituted a suit under the provisions of Order XXI, Rule 63, Code of Civil Procedure, making the decree-holder and the judgment-debtor as party defendants. The suit was dismissed by the trial court but on appeal it was decreed, with the result that the title to the property which had been purchased by the decree-holder was declared to be with the claimant. Thereupon the decree-holder applied afresh for execution of the same decree. It was held by this court that the foundation upon which the sale stood was affected and disappeared when the decision in the suit under Order XXI, Rule 63, Code of Civil Procedure, held that title to the property was with the claimant.