KAMLA PRASAD MISSIR Vs. CHANCHAL TEWARI

JUDGEMENT

(1.) These two appeals are directed against the Judgment of a learned single Judge of this Court, passed in Miscellaneous 'Appeals Nos. 386 and 387 of 1961, D/- 17-10-1962. These two miscellaneous appeals had been filed by the same decree-holder, and the appeals having been dismissed, the decree-holder has filed these appeals under the Letters Patent of this Court.

(2.) The facts relevant for the decision are as follows: The decree-holder-appellant had obtained a decree for money against the respondent and he had levied Execution Case No. 292 of 1951 for realisation of his decretal dues. In the execution case, one bigha 17 kathas 2 dhurs of land was sold on the 7th May, 1952 and the decree-holder purchased the property. The sale was confirmed on the 27th June, 1952 and satisfaction of the decree was recorded. Subsequently, one Basdeo Tewari instituted a title suit under the provisions of Order XXI Rule 63 of the Code of Civil Procedure, claiming three-fourths interest in the property sold in the execution case and the suit was decreed. The title suit was numbered as Title Suit No. 35/24 of 1953/54 and the plaintiff of that suit obtained a declaration to the effect that the sale held on the 7th May, 1952 was not binding on the plaintiffs three-fourths interest in the property. Thereafter, the decree-holder filed an application before the executing court, seeking permission to execute his decree for realisation of three-fourths of the decretal amount and the case was registered as Miscellaneous Case No. 129 of 1958. In this miscellaneous case the decree-holder was granted permission to levy fresh execution for realisation of three-fourths of the decretal amount. Thereupon the decree-holder levied Execution Case No. 315 of 1958 on the 27th June, 1958. In that execution case, one bigha and odd of land was sold on the 7th October, 1958 and was purchased by the decree-holder himself. The sale was confirmed in due course and delivery of possession was effected. Thereafter, the judgment-debtor filed two applications contending that the permission granted to the decree-holder for levying fresh execution was illegal and challenging the legality of the sale held in the second execution case. These two applications were registered as Miscellaneous Cases Nos. 280 and 281 of 1958 and these two appeals have arisen out of these miscellaneous cases. The executing court allowed the judgment-debtor's applications, holding that the sale held in Execution Case No. 315 of 1958 was null and void and without jurisdiction. The appeals filed by the decree-holder in the first court of appeal failed and his appeals in this Court in the two miscellaneous appeals have also failed.

(3.) It has been contended by the learned counsel for the appellant, that, there was no illegality in the sale held in Execution Case No. 315 of 1958, for the realisation of three-fourths of the decretal dues, as in effect, the sale held on the 7th May, 1952 must be deemed to have been set aside to the extent of three-fourths share of the property purchased by the decree-holder, as a result of the decree passed in the title suit instituted by Basdeo Tewari. The learned counsel has relied upon the decision of this Court in Radha Kishun Lal v. Kashi Lal reported in AIR 1924 Pat 273. It is contended that the case of Mt. Bibi UmatuI Rasul v. Mt. Lakho Kuer, reported in AIR 1941 Pat 405 has erroneously been relied upon by the learned single Judge in rejecting the decree-holder's contentions. In my opinion, Radha Kishun Lal's case AIR 1924 Pat 273 cannot be taken to support the contentions raised by the learned counsel for the appellant. What had happened in that case was that two lots of property had been sold in execution of a decree and lot No. 1 was purchased by the decree-holder and lot No. 2 was purchased by a third party. The sale of lot No. 2 was ultimately set aside for some irregularity. Thereafter, the decree-holder levied fresh execution to recover the whole of the Judgment-debt This was done because one Firangi Lal had brought a suit against the decree-holder and the judgment-debtor for declaration of his title to lot No. 1 and for possession. That suit was decreed. In these circumstances, this Court held that the effect of the decree passed in favour of Firangi Lal was to set aside the sale and, therefore, it was not necessary for the executing court to cancel the order of satisfaction of the decree. Thus it was held that the decree-holder could proceed to recover his decretal debt by a fresh execution. In the instant case, however, it is not possible to hold that the effect of the decree passed in the suit instituted by Basdeo Tewari was to set aside the sale partly with respect to three-fourths share of the property purchased by the decree-holder on 7th May, 1952. Even the decree-holder proceeded in the second execution case on the footing that the sale held in 1952 was good to the extent of one-fourth share of the property purchased by him. In the case of Mt. Bibi Umatul Rasul, AIR 1941 Pat 405, the decree-holder-respondent had obtained a decree for money and in execution thereof certain property was attached as belonging to the judgment-debtor appellant. The property was sold and the sale was confirmed. Satisfaction was entered. But, in the meantime, a suit had been instituted by a claimant under Order XXI, Rule 63 of the Code of Civil Procedure against the decree-holder and the judgment-debtor. The suit succeeded ultimately and thereupon the decree-holder applied afresh for execution of the same decree. The judgment-debtor objected to the fresh execution on the ground that so long as the sale stood, the decree-holder was not entitled to execute the decree afresh. The court held, following Radha Kishun Lal's case, AIR 1924 Pat 273 that the effect of the decree obtained by the claimant was to set aside the sale and no formal order to that effect was necessary. In this decision reference has been made to the case of Amar Nath v. Firm Chotelal Durgaprasad, reported in AIR 1938 All 593 (FB) and I am of the opinion that the ratio of that decision is applicable in the instant case. In Amar Nath's case AIR 1938 All 593 (FB) the plaintiff had obtained a decree for some amount of money and an application for execution was made by sale of a house. A lady made an objection under Order XXI, Rule 58 of the Code of Civil Procedure, claiming a share in the house. The objection was dismissed and the decree-holder purchased the house in a execution sale. The sale was confirmed and satisfaction was entered. The lady had, in the meantime, brought a suit on her claim and obtained a decree for possession of a part of the house. Thereafter, the decree-holder applied for execution of the balance of his decree. A Full Bench of five learned Judges of the Allahabad High Court held that as regards a decree-holder, who has purchased at auction sale, his rights are limited to those granted under Order XXI, Rules 91 and 92 of the Code of Civil Procedure, and if the auction sale is confirmed that becomes res judicata between him and the judgment-debtor and he cannot reopen the matter by a mere application for further execution, unless he can get the order confirming the sale set aside. The judgment of the Allahabad High Court has dealt with the question from all possible aspects and I consider, respectfully, that the correct conclusion was arrived at. Reference was made to a Full Bench decision of this Court, in the case of Surendra Kumar Singh v. Srichand Mahata, reported in AIR 1936 Pat 97 (FB) where the principle under consideration was enunciated thus:--