ARIMARDAN SINGH Vs. RAI BAHADUR DEONANDAN PD SINHA

JUDGEMENT

(1.) This appeal by one of the judgment-debtors arises out of a miscellaneous case in Money Execution Case No. 66 of 1953 which was transferred to the Court of the Subordinate judge, Bhagalpur, from the Court of the 2nd Subordinate Judge, Monghyr. The facts of the case, in a short compass, are as follows: The respendent-decree-holder instituted Money Suit No. 26 of 1948 in the Court of the 2nd Subordinate Judge, Monghyr, against Kumar Daulat Singh shown as major and Kumar Sukha Singh and Kumar Arimardan Singh shown as minors and placed under the guardianship of a pleader. The suit was decreed for Rs. 19,800/-, besides costs. The decree-holder levied execution, being Execution Case No. 74 of 1949, on the 6th December, 1949. Judgment-debtor No. 1 Kumar Daulat Singh filed an objection under Section 47, C. P. C. and Section 11 of the Bihar Money Lenders Act which gave rise to Miscellaneous Case No. 33 of 1950. The judgment-debtors were allowed payment by instalments and a sum of Rs. 11,395/- was actually realised by the decree-holder in terms of the instalments allowed. The judgment-debtors having failed to make any further payment, the execution proceeded for the balance of Rupees 11,000/- and odd. The judgment-debtors' property was sold on the 30th of May, 1952, for Rs. 11,204/14/-. It was purchased at the auction sale by the decree-holder and the set off of the entire decretal dues was allowed. Poundage fee was also filed and 30th of August, 1952, was fixed for confirmation of the sale. On the 28th of June, 1952, however, an application under Order 21, Rule 90, Code of Civil Procedure, was filed by Kumar Daulat Singh which was numbered as Miscellaneous Case No. 17 of 1952. After some adjournments, however, challan for deposit of security money was filed on the 5th September, 1952, which was received in the office on the 23rd October, 1952, showing deposit. On that very dat , a petition was filed by the decree-hol-der to set aside the sale and allow the prayer of the applicant Kumar Daulat Singh. The sale was set aside on the 29th October, 1952, and the execution sale was disposed of on part satisfaction on the 28th November, 1952. It appears that the decree-holder had levied the present execution for realisation of the amount of bai-ance of the decretal dues.

(2.) The appellant objected to the maintainability 01 the fresh execution on the ground that the executing Court had no jurisdiction to set aside the sale held on the 30th of May, 1952, on the application filed by one of tne judgment-debtors, namely, Kumar Daulat Singh, without even giving notice to the appellant. Kumar Daulat Singh made the application for setting aside the sale in collusion with the decree-holder who was anxious to have the sale set aside.

(3.) The learned Subordinate Judge overruled the contention that Kumar Daulat Singh made the application tor setting aside the sale under Order 21, Rule 90, Code of Civil Procedure, in collusion with the decree-holder. He has also overruled the objection that the Court holding the sale was bound to issue notice under Order 21, Rule 92, Code of Civil Procedure, to the appellant, before setting aside the sale. The appellant has come up to this Court against the decision.