IMTIAZ-UN-NISSA Vs. CHUTTAN LAL

JUDGEMENT

(1.) The facts of this case are undisputed, but it raises a question of law which is nob altogether easy. The object of the judgment-debtor's application is to correct a mistake in an execution sale which took place in the year 1920. Undoubtedly there was a mistake. The judgment-debtor had a 4 biswas share which was converted on a partition into a share described as "20 biswas farzi." In the execution proceedings the 1 biswa in respect of which the decree holder had got a mortgage-decree was treated as having been converted into 20 biswas farzi, and she entire share of 20 biswas farzi was put up to sale, sold and bought by the decree-holder. The judgment-debtor never objected, the sale was duly confirmed, a sale certificate was prepared and the decree-holder was formally put in possession through the Court. All this look place in 1920. In the following year the decree-bolder also obtained mutation of names in the revenue registers. After this the decree-holder sold the property to the respondent Chuttan Lal.

(2.) On 17 March, 1923, the judgment-debtor come into Court with an application stating that he had now discovered that a mistake had been made and asking the Court to restore him to possession of 15 out of 20 biswas which had been sold. The respondent, Chuttan Lal, objected that the application was not covered by Section 47 of the Civil P. C., under which it professed to be brought, and that it was barred by Order 21, Section 92. Ho also averred, and this is not contradicted, that he purchased the property in good faith for adequate consideration after examining the sale certificate. The lower Appellate Court accepted the respondent's contention and dismissed the application. The judgment-debtor had not based his case on Section 151 of the Code of Civil Procedure but the learned Judge considered whether he could or should apply that section and decided that he would not be justified in doing so because to do so would be to penalise the respondent who acquired the property for valuable consideration, because the judgment-debtor contributed to the present state of things by his own negligence, and because in his opinion the judgment-debtor had a remedy by suit against the decree-holder.

(3.) The question whether Section 47 applies is concluded against the appellant by the Full Bench ruling of this Court in Bhagwati V/s. Banwari Lal (1908) 31 All. 82. It was there held that a question between the auction-purchaser and the judgment- debtor with reference to the possession of property sold under the decree was not covered by Section 2M of the old Civil P. C. which corraspouds to Section 47 of the present Code It was argued for the appellant that there are dicta to be found in sarao reported judgments of this Court which throw a doubt on the correctness of that decision, but, however that may be, it is impossible to hold that the Full Bench ruling has ever been superseded or that it has ceased to be binding law in this Province. It has recently been followed by a Full Bench of the Bombay High Court in Hargovind Fulchand V/s. Bhudar Raoji A.I.R. 1924 Bom. 429 the auction-purchaser being held to be the representative of the judgment-debtor and not of the decree-holder. It also appears to be barred by Order 21, Rule 92. The judgment-debtor could certainly have applied under Order 21, Rule 90 to set aside the sale on the ground that property not covered by the decree had been proclaimed for sale and sold. The appellant has not based his case on the provisions of Section 151 of the Civil P. C. though the third ground of appeal seems to hint at the Court making use of chat section to rectify the mistake which has been made. We think that this is not a case in which that section can properly be applied. The present application was not made till more than three years after the sale, and it is substantially directed against a purchaser for value who was no party to the decree and who acquired the property in good faith on the basis of the sale certificate. We accordingly dismiss the appeal, but under the circumstances we direct that the parties bear their own costs.