CHOTA NAGPUR BANKING ASSOCIATION Vs. CTMSMITH

JUDGEMENT

(1.) This is an appeal from an order passed by the Subordinate Judge of Dhanbad in certain proceedings under Section 144, Civil P.C. The circumstances under which these proceedings were instituted were these: Sometime in 1936 respondent 2 instituted a suit in which he claimed in the first instance the ejectment of respondent 1 from a certain building as well as the compound and the out-houses attached to it and in the alternative he claimed for assessment of fair and equitable rent and for recovery of the rent so assessed for a period of three years. The claim for ejectment was dismissed by the trial Court but a decree for a sum of Rs. 14,000 was passed in favour of respondent 2 as representing the arrears of rent for three years. Respondent 1 thereupon appealed to the High Court and respondent 2 preferred a cross, objection.

(2.) Ultimately, the appeal of respondent 1 was allowed and the entire suit was dismissed with costs. While the appeal was pending in the High Court, respondent 2 applied for the execution of the decree passed by the trial Court and got the property which was the subject-matter of the ejectment suit sold on 4 February 1939 and this property was purchased by the appellant who subsequently took possession of the same through Court on 18 April 1989. Subsequently, on 8th May 1941 after the appeal of respondent 1 was allowed by the High Court, he filed an application for setting aside the sale and for restitution as well as for recovery of damages and mesne profits under Secs.144 and 151, Civil P.C., in the Court of the Subordinate Judge of Dhanbad. Upon this application the learned Subordinate Judge passed the following order: All things considered. I hold that the applicant is entitled to get the auction sale set aside and take back possession of the property under claim from opposite party 2. His petition is silent as to the amount of damage or mesne profits claimed by him and neither did he Bee his way to adduce any evidence on the point. This part of his claim is therefore rejected. The petition is allowed accordingly in part and the auction sale is hereby set aside. The applicant will be restored to possession of the disputed property and he is allowed full costs...it may be noted that in the circumstances of the case the bank opposite party 2 is entitled to get a refund of the sale proceeds.

(3.) The Chota Nagpur Banking Association who are referred to in the above order as opposite party 2 have now preferred this miscellaneous appeal and the point which has been raised on their behalf is that the order of the learned Subordinate Judge directing them to restore possession of the disputed property to respondent 1 is illegal and there, fore fit to be set aside. The learned advocate for the appellant in this Court has in support of the appeal relied on a number of decisions notably the decisions of the Privy Council in Zain-ul-Abdin Khan V/s. Muhammad Ashgar Ali Khan V/s. (88) 10 All. 166 and Rewa Mahton V/s. Ram Kishan Singh (87) 14 Cal. 18. It was held in the first case that a sale having duly taken place in execution of a decree in force at the time cannot afterwards be set aside as against a bona fide purchaser not a party to the decree on the ground that on further pro-seeding the decree has been subsequently to like sale reversed by an appellate Court. In that case a suit had been brought by the judgment-debtor to set aside sales of his pro-party in execution of a decree against him in force at the time of the sales. That decree was afterwards modified as the result of an appeal to the Privy Council with the result that it would have been satisfied without the sale of some of the properties which had already been sold. In the suit which the judgment-debtor brought he impleaded both those who were purchasers at some of the sales as well as the holders of the decree to -satisfy which the sales had taken place. One of the purchasers was found to be a bone fide ?purchaser who was no party to the decree and so far as he was concerned the Privy Council held that the sale could not be set aside.