BALWANT SINGH Vs. MUSAMMAT LAIQA BEGAM

JUDGEMENT

(1.) Premsukh Das held a decree for money against Anwa(sic)ul Hasan. In execution of which he attached certain property. Before that attachment Anwarul Hasan had died and is daughter-in-law, the present plaintiff-respondent, had been impleaded as his legal representative. The plaintiff respondent objected to the attachment of the said property, c ntending that it did not belong to Anwarul Hasan, the deceased juagment debtor. Her objection was disallowed by the Court executing the decree out appeal that objection was upheld and the order of the Appellate Court was finally confirmed by this Court.

(2.) Meanwhile the property attached had been sold by auction in execution of that decree and purchased by the defendant-appellant Balwant Singh. The present suit was tiled by the plaintiff respondent for the recovery of possession of that properly or in the alternative for the recovery of Rs 500 the value of the said property. Both the auction-purchaser and the decree holder were made parties to the suit. The Court of first instance dismissed the claim but the lower Appellate Court decreed it.

(3.) The first question for consideration is, whether Section 144 of the Code of Civil Procedure barred the claim. That provision allows restitution to be made against the decree-holder who obtain any benefit under decree which is afterwards revered on appeal. It does not allow restitution to be made against a third party. The auction purchaser in the present instance was not the decree-holder and Section 144, Civil Procedure Code has therefore, no application. The object of that section is to place the parties to a decree in the position which they would have occupied but for such decree or such part thereof as has been varied or revered and the relief allowed by that provision can only be clained against the party to such a decree obtaining the benefit prior to such variation or reversal.