NARAIN SINGH Vs. ZALIM SINGH

JUDGEMENT

(1.) THIS is a defendant appeal arising out of the folio vying circumstances. It appears that there were tyro decrees outstanding against the plaintiff, one No. 1653, and the other No. 1307. The defendant Lal Hans was a decree-holder in both these decrees but in decree No. 1653 there were other decree-holders also. A contract was entered into between the present plaintiff and Lai Hans, the decree- holder aforesaid, that the latter would pay off both the decrees and the plaintiff would transfer 14 1/2 bighas to him out of 16 bighas and odd share which the plaintiff had purchased at auction on the 20 of July 1905. The plaintiff carried out his port of the contract and executed a sale-deed of the property in favour of Lai Hans. Lai Hans satisfied the decree No. 1307 only but did not pay off the other decree-holders in decree No. 1653. Lal Hans, however, got mutation of names effected in his favour of only 4 bighas and odd out of 14 bighas and odd share sold to him. The decree-holders, other than Lal Hans, of the decree No. 1653 executed the decree and put up to sale the 11 bighas and odd share which stood in the name of the plaintiff because Lal Hans had obtained mutation of names in only 4 bighas and. odd out of the 14 bighas and odd sold to him by the plaintiff. These 11 bighas and odd were sold, the decree was satisfied and a surplus amount was left over. THIS surplus amount of Rs. 55 was withdrawn by the plaintiff Zalim Singh. THIS was in the year 1914. On the 23 March 1920 the plaintiff brought the present suit to recover from Naraiti Singh who had purchased the property at auction-sale. The property sought to be recovered was one bigha and odd the difference between the 16 bighas and odd owned by the plaintiff originally and the 14 bighas and odd sold by him to Lai Hans. THIS Narain Singh, defendant, is the Son of Lai Hans aforesaid who has also been made a defendant. The defence pleaded was that defendant Lai Hans had not committed any fraud on the plaintiff and the plaintiff had no right to sue, that he was estopped from contesting the validity of the sale because he had taken back the surplus money. It was also contended that the suit did not lie having regard to the provisions of Section 47 of the Civil P. C.. The Trial Court decreed the claim subject to the plaintiff paying Rs. 50 a part of the surplus amount to the defendant Lal Hans. The defendant Nerain Singh the auction-purchaser went up n appeal and the learned Judge of he lower Appellate Court lies confirmed the decree of the Court below except in so far as it modified the decree of the First Court by allowing Rs. 55 to the defendant Lai Hans. The defendant conies here in second appeal and the only ground urged by him is that the suit is barred by Section 47 of the Code of Civil Procedure. The Learned Vakil for the appellant has relied upon the case of Prosunno Kuma Sanyal V/s. Kali Das Stinyal 19 C. 683 : 19 I.A. 166 : 6 Sar. P.C.J. 209 : 9 Ind. Dec. (N.S.) 809 (P.C.) in support of the contention that the proceedings could have been taken under Section 47 of the Code of Civil Procedure in this matter. T cannot agree to this contention. Tins ruling was passed under the old Civil P. C. and laid down that the question of, fraud also between the judgment-debtor and the auction-purchaser could be determined under Section 244 of the old Civil P. C.. In the present suit, however, the question of fraud has arisen in this way that the judgment-debtor pleads that one of the decree-holders who had agreed to pay up his co-decree-holder did not do so with the result that the property was sold in execution taken out by the co- decree-holder and the plaintiff was demnified and justified to sue to recover his property. THIS was neither fraud in publishing nor conducting the sale. I hold that an application like the present suit could not have been made under Section 47 of the Civil Procedure Code. I, therefore, dismiss this appeal with costs.