FIRM JETHMAL Vs. RAM NATH

JUDGEMENT

(1.) THIS is a plaintiff's appeal who won its money suit in the trial court but lost it in the first appellate court of District Judge, Bikaner.

(2.) THE case set up by the plaintiff, though simple, is of unusual nature and gives an interesting reading. As per averments disclosed in the plaint, defendant Ramnath (who passed away during the pendency of this appeal and whose legal representatives have been substituted in his place) obtained a money decree being No. 2 of 1956 against Ram Niwas on June 6, 1957. In execution of that decree. Ram Niwas get attached and sold a shop described in para 9 of the plaint situate in the city of Bikaner. In the auction conducted by the Executing Court it was purchased by the plaintiff firm on July 15, 1959 for a sum of Rs. 3601/ -. THE sale was confirmed and sale certificate was issued to the plaintiff on September 9, 1959. THE possession of the shop was also delivered to the plaintiff on Oct. 22, 1959 and since then he continued to be in possession of it. On December 23, 1961, the Assistant Custodian cum Managing Officer, Ganga-nagar taking the said shop as forming part of the property of the compensation pool under the Displaced Persons (Compensation and Rehabilitation) Act. 1954 (hereinafter referred to as 'the Act') sold it by auction and it was purchased for a sum of Rs. 7700/- by Diwan Chand (PW4 ). THE sale certificate was issued by the said Officer in favour of Diwan Chand on September 7, 1963. THE plaintiff raised objections against the said auction but his objections were over-ruled on the ground that Ram Niwas (against whom the defendant Ramnath had obtained a money decree) had no saleable interest in it. THE Assistant Custodian cum Managing Officer held that the aforesaid shop was an evacuee property bearing Number 386-EP. As Ram Niwas had no saleable interest in the shop, it was not available for attachment and sale in execution of decree which the defendant had obtained against him. It was, therefore, got wrongly attached and sold by the defendant. THE plaintiff had purchased it in the Court auction under the bonafide belief that it really belonged to Ram Niwas. Since Ram Niwas had no saleable interest in it,the sale made in favour of the plaintiff was null and void on account of the failure of consideration. THE plaintiff was, therefore, entitled to get the refund of his amount of Rs. 3601/- which the defendant had withdrawn from the executing court. It was also alleged that the auction of the shop through the court in execution of the decree took place due to the mutual mistake of fact which was that the Judgment debtor Ram Niwas was taken as the owner of it. THE plaintiff moved an application in the Executing Court for the refund of his purchase money of Rs. 3601/- but that application was dismissed on July 17, 1963 by the District Judge, Bikaner. THE plaintiff came to this court in revision against that order of the District Judge, which was decided by a Division Bench on April 20, 1968. Since the sale of the shop in favour of the plaintiff was confirmed, his application was held not maintainable and the revision was dismissed. THE learned Judges of the Division Bench were, however, of the view that justice and equity spoke in favour of the plaintiff and as such his application for refund of money may be treated as a suit. He was allowed to introduce necessary amendments in his application, and to pay court fee thereon so that it may be treated as a plaint. THE plaintiff thereupon, after introducing the necessary avaendments in his application, presented it as a plaint with requisite court fee. It was registered as a suit. THE relief claimed by the plaintiff was the recovery of a sum of Rs. 3601/- as principal and Rs. 72/- as interest thereon, that is for a sum of Rs. 3673/- in total from the defendant.

(3.) IT was on the other hand contended by Mr. Moondra appearing for the respondent that the findings on the above matters are sound one and should not be ligally disturbed.