(1.) This is an appeal by the judgment-debtor against the appellate order passed by the District Judge of Patna ordering the execution of a decree to proceed. The only question for determination in this appeal is whether in the circumstances narrated below this Bench should follow the decision in Radha Kishun Lal V/s. Kashi Lal A.I.R. 1924 Pat. 273 or should refer the matter to a Full Bench in view of certain observations made in Surendra Kumar Singh V/s. Srichand Mahta A.I.R. 1936 Pat. 97.
(2.) The facts are extremely simple. The respondent obtained against the appellant a decree for money in execution of which she attached certain property as belonging to the appellant. Upon the attachment a claim was preferred by a third party under Order 21, Rule 58, Civil P.C., but it was rejected. On the rejection of that claim the sale of the attached property was held and the decree-holder became the auction purchaser. The sale was duly confirmed and a note was made in the execution register that the decree was fully satisfied. In the meantime within the period of limitation provided by law the claimant instituted a suit under the provisions of Order 21, Rule 63, Civil P.C., making the decree-holder and the judgment-debtor as party defendants. The suit was dismissed by the trial Court but on appeal it was decreed with the result that the title to the property which had been purchased by the decree-holder was declared to be with the claimant. Thereupon the decree-holder applied afresh for execution of the same decree. The judgment-debtor objected to this fresh execution on the ground that so long as the sale stood and the order entering full satisfaction of the decree was not removed from the records of the executing Court, the decree-holder was not entitled to execute the decree afresh. The learned Munsif acceded to this objection but on appeal the learned District Judge overruled it and held that there was no bar to the decree-holder executing the decree in the circumstances. Hence the appeal before this Court.
(3.) The matter is fully covered by the Division Bench decision of this Court in Radha Kishun Lal V/s. Kashi Lal A.I.R. 1924 Pat. 273 where in circumstances similar to those that exist in the present case it was held that the effect of the decree obtained by the claimant in the suit under Order 21, Rule 63, Civil P.C., was to set aside the sale and no formal order to that effect was required. Mullick J. who delivered the judgment in that case (Buoknill J. concurring) observed: The decree-holder and the judgment-debtor were both parties to the suit and, therefore, they are bound by the order. The argument that under the present Civil Procedure Code no sale can be set aside, except by a resort to the procedure of Order 21 is, in my opinion, not well founded; nor is it necessary that the execution Court should formally cancel the order of satisfaction which was recorded after the sale of lot No. 1, before the decree-holder can proceed to recover the debt which has been revived in consequence of the decree declaring the sale of lot No. 1 to be invalid.