CENTRAL BANK OF INDIA LTD Vs. GAIBI DAS

JUDGEMENT

(1.) This is a Letters Patent Appeal against the judgment of a Single Judge of this court (Rai J.) in Miscellaneous Appeal No. 353 of 1957 by the unsuccessful party in an objection under Section 47 of the Civil Procedure Code. The material facts are as follows. One Gaibi Dss (Respondent No. 1) obtained a money decree in Money Suit No. 230 of 1951 in the court of the Munsif, 2nd court, Bhagalpur, against a firm known as Chowdhary Silk Mills and its partners Bibhuli Bhman Chowdhry and Ajit Kumar Chowdhry. That decree was put in execution in Execution Case No. 105 of 1953 and the properties in dispute were auction-sold and purchased by the- decree-holder on the 17th March, 1954. The judgment-debtors, however, on the 12th March, 1954, filed a petition under section 47 of the Civil Procedure Code, which was registered as Miscellaneous Case No. 35 of 1954. One Kumud Kant Chowdhry, father of Bibhuti Bhushan Chowdhary and Ajit Kumar Chowdhry, filed a petition under Order 21, Rule 58, Civil Procedure Code, against the attachment of that property and that was numbered as Miscellaneous Case No, 36 of 1954. Later on Miscellaneous Case No. 35 of 1954 was compromised and Miscellaneous Case No. 36 of 1954 was withdrawn, on the undertaking that the entire money would be deposited by the 15th December, 1954, failing which the sale was to be confirmed and the claim case was to stand dismissed. As the money was not deposited on the due date, the sale in favour of Gaibi Das was made absolute on the 15th December, 1954.

(2.) The appellant Batik was also one of the creditors of the said Silk Mills and its partners. It also obtained a decree in Money Suit No. 146 of 1951, and in Execution Case No. 89 of 1953 purchased the property on the 12th April, 1951 The sale was confirmed on the 25th May, 1954, and delivery of possession was also obtained on the 4th June, 1954. Thus, though Gaibi Das's sale was earlier, namely, the 17th March, 1954, it was confirmed only on the 15th December, 1954, whereas the appellant's sale though later, was confirmed earlier, i. e. on the 25th May, 1954. Gaibi Das claiming to be the representative in interest of the judgment-debtors, filed a petition under section 47 of the Civil Procedure Code in the Bank's Execution case No. 89 of 1953. This was registered as Miscellaneous Case No. 21 of 1957. A preliminary objection was taken by the Bank to the maintainability of that petition on the ground that after the sale in favour of the Bank had been confirmed on the 25th May, 1954, and delivery of possession also had been taken on the 4th June, 1954, there could ba no further depute about the satisfaction of the decree, and that, consequently, Section 47, Civil Procedure Code, had no application. This and other matters were disposed of by the learned Subordinate Judge of Bhagalpur (the executing court) by an order dated the 20tli fune, 1957. He hold that though Money Execution Case No. 89 of 1953 was disposed of on full satisfaction by the Executing court, nevertheless a person claiming to be the successor-in-interest of the judgment-debtors could challenge the entire sale under Section 47 on the ground that on the date of the sale the judgment-debtors had no saleable interest and the entire sale was, therefore, void ab initio. According to the learned Subordinate Judge, the only restriction on his right is that provided by the law of limitation, namely, three years from the date of the sale, and so long as he was within this period of limitation, his right to challenge the sale by a petition under Section 47 was not taken away merely because the sale was confirmed and delivery of possession was also taken by the decree-holder-auction-purchaser. As already pointed out the learned subordinate Judge passed a distinct order respecting the preliminary objection on the ground of maintainability on the 20th June, 1957. In a subsequent order dated the 20th August, 1957, the learned Subordinate Judge discussed the main question of fact as to whether the disputed property belonged to the firm, namely Chowdhary Silk Mills, or else whether it was the self acquired property of Kumud Kant Chowdhry, the father of Bibhuti and Ajit Chowdhry. He held that both the father and his two sons had interest in the Chowdhry Silk Mills which was one of the judgment-debtors in the decree obtained by Gaibi Das, and that, consequently though Kumud Kant Chowdhry was not a judgment-debtor in Gaibi Das's Execution case No. 105 of 1953 nevertheless as the Chowdhry Silk Mills was a party and he was one of the partners of the said Mills, his interest in the property also was extinguished by the sale. He further observed that Kumud Kant Chowdhry's conduct it) the claim case filed by him under Order 21, Rule 58, Civil Procedure Code (registered as Miscellaneous case No. 36 of 1954) was sufficient to show that he disclaimed all interest in the property. I have already pointed out that this claim case was withdrawn on the understanding that if the entire decretal money was not paid by the 15th December, 1954, the sale in favour of Gaibi Das would be confirmed and the claim case would be dismissed. Thus the claim case was dismissed and admittedly no suit was filed under Order 21, Rule 63, Civil Procedure Code. The learned Subordinate Judge, therefore, held that as Gaibi Das' sale was earlier than that of the Bank, even though confirmed later, it must prevail,

(3.) The Bank filed an appeal which was heard by the learned Single Judge and dismissed on the 16th November, 1959. The appeal was against the order of the Subordinate Judge dated the 20th August, 1957, and it purported to be also an appeal against the order of the Subordinate Judge dated the 20th June, 1957, rejecting the preliminary objection as regards the maintainability of the appeal.