MANDRESHWAR PRASAD SINGH Vs. MOTILAL RAMESHWAR PRASAD

JUDGEMENT

(1.) This appeal by the judgment-debtor against concurrent orders of the courts below, dismissing his objection finder Section 47 of the C. P. Code, has been referred to Division Bench, as an important question of law whether after the sale is confirmed and complete satisfaction of the execution is recorded in the order sheet, can a fresh execution be levied without getting the sale set aside under the provision of Order XXI Rule 91 of the Code of Civil Procedure if an application under Rule 100 of Order XXI of the Code of Civil Procedure by a third party was allowed and an observation was made directing the decree-holder to file a fresh execution case for recovery of the decretal dues from the judgment-debtor who had also been impleaded as opposite party in the miscellaneous case order XXI Rule 100 of the Code of Civil Procedure, is involved in it. In the case of Benode Sahu v. Jama Khan. AIR 1953 Patna 9, it was held by Das and Ramaswami JJ. (as they then were) that where sale is confirmed and execution case is dismissed as fully satisfied, fresh execution without getting the sale set aside is barred and no fresh execution can be levied, because, an order in a proceeding under Rule 100 of Order XXI of the Code of Civil Procedure was passed in favour of a person in possession. In the case of Surendra Kumar Singh v. Srichand Nahata a Full Bench decision of this Court reported in ILR 15 Pat 30R = (AIR 1936 Pat 97). it was also held that the decree holder if he purchased the property, cannot successfully maintain an application for the revival of the execution proceedings on the ground that the sale has not, in fact, satisfied his decree to the extent of the sale price unless he gets the sale set aside by applying under Order 21 Rule 91 of the Code of Civil Procedure. In that case, however, there was no application or order under Order 21 Rule 100 of the Code of Civil Procedure A Bench if Travancore-Cochin in the case of Perumal Abraham v. Geevarghese George. AIR 1953 Trav-Co 620 held that if there is an order quashing the sale itself in a proceeding started at the instance of a person in possession of the property sold, on his own account, and the judgment-debtor was a party to such a proceeding fresh execution can be levied even without getting the sale set aside under Order 21 Rule 91 of the Code of Civil Procedure. Thus, the questions which arise for decision in this appeal and which have been argued by learned counsel for the parties are the following :-- (1) Whether the reasonings for the decision in Perumal Abraham's case AIR 1953 Trav-Co 620 are correct and be adopted by this Court and whether there is, though not apparent an implied conflict between that decision and two decisions of this Court referred to above and (2) Whether the observation of the Court which decided the proceedings under Order 21. Rule 100 of the Code of Civil Procedure directing the decree-holder to file a fresh execution case, amounted to an order setting aside the sale in the instant case.

(2.) In ordei to fully appreciate the questions for decision formulated above it will be necessary to state briefly the facts of the case which are no1 in dispute The decree-holder respondent obtained an ex parte money decree against the appellant in money suit 110 of 1950 of the Court of second Munsif. Bhagalpur on 4-12-1950. The decree was transferred for execution to the Munsif. Banka and there the respondent levied Execution Case No. 189 of 1956 and purchased some properties at Court sale. The sale was confirmed and the execution case was dismissed on full satisfaction on 17-12-1957 On 20-3-1958 the respondent obtained delivery of possession through Court and on 18-4-1958 an application under Order 21, Rule 100 of the Code of Civil Procedure was filed by me Padmawati Kumari which was registered as Miscellaneous Case No. 77 of 1958 The respondent was, impleaded as opposite first party and the appellant as opposite second party to the said application. The application was allowed by Munsif. Banka and in the concluding portion of the order he observed :-- "O. P. 1st party will file a fresh execution case and will proceed for recovery of their dues against the O. P. 2nd party". The respondent then levied a fresh execution in the Court of Munsif at Bhagalpur which was numbered as Execution Case No. 679 of 1960 and the appellant filed an objection to the maintainability of the execution case alleging that as the sale was confirmed and the execution case was dismissed on full satisfaction the decree-holder was not entitled to reopen the matter unless he got the order confirming the sale set aside The objection was dismissed by the executing Court. The appeal of the judgment-debtor against the said order was also dismissed by the Additional District Judge. Hence the present appeal.

(3.) It is convenient to dispose of the second question first before taking up for consideration the first question It appears from the order under Rule 101 of Order 21 of the Code of Civil Procedure (Ext. A) that the learned Munsif who passed the order was not at all aware of the legal position that no fresh execution can be levied when an execution case is dismiss-ed on full satisfaction after sale unless the sale is set aside and was of the view that an order on an application under Rule 100 in favour of a third party has the effect of setting aside the sale This is manifest from the following passage of the order : --