MADHU SUDAN SHAHA Vs. RAM PERSHAD CHIMANLAL, FIRM

JUDGEMENT

(1.) On 21 September 1932 the petitioner purchased 1 Bigha 4 Cottas of land on which were tin sheds and a godown in Mouza Panjagram. The purchase was made at an auction sale in execution of a rent decree against opposite party 2 and his cosharers. The sale was subsequently confirmed and the petitioner obtained possession through Court and has since been in possession of the property.

(2.) Opposite party 1 had also got a deceree against Opposite Party 2 and in execution of his decree had attached on 12 June 1931 a four annas share of the same property, and in execution of his decree this share of the property was sold on 18 June 1932 ; an application was made to set aside this sale and it was set aside on 29 July 1933. Thereafter proceedings were taken for re-sale and 23 October 1933 was fixed for the sale. On that date the petitioner applied to the learned Subordinate Judge for exemption of the property from sale on the ground that the judgment-debtor had no saleable interest, the property having already been purchased by him on 21 September 1932. His petition was however rejected by the learned District Judge without going into the merits of the application on the ground that there was no provision in the Civil P. C. empowering the Court to entertain such an application. It is against this order that the petitioner has come up to this Court in revision.

(3.) In coming to this decision the learned Judge was following the ruling, Mahadeo Lal v. Dinkar Prasad, (1911) 9 IC 194, in which it was held that neither Under Order 22, Rule 58 nor Under Section 47, Civil P. C, could the petitioner apply to prevent the sale of his property. Now Order 21, Rule 58 had obviously no application as it refers to objection to attachment. The question on which this case depends is whether the auction purchaser in execution of a money decree is a representative of the judgment-debtor in another case, the property having been attached in execution of the decree in that case previous to his decree.