MANGAL Vs. MATHURA PRASAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for refund of the amount deposited by the plain tiffs in Court as auction-purchasers of certain properties against the contesting defendants who had attached and taken the surplus of the decretal amount which remained to the credit of the judgment-debtors.

(2.) It appears that a suit had been filed by Digambar and others against the judgment-debtor and the decree-holder on 3 July 1924, for declaration that the property did not belong to the judgment-debtor and was not liable to be sold, and for recovery of possession. While that suit was pending, the decree-holder put up the property for sale, and it was sold on 4 September. 1924, and purchased by the present plaintiffs. Before the period of 30 days expired and the sale could be confirmed, the auction-purchasers applied to the Court praying that the payment of sale proceeds may be held over till the decision of the civil suit. They however made no application under Order 21, Rule 91 for the setting aside of the sale on the ground that the judgment-debtors had no saleable interest in the property at all. Their; application was allowed by trial Court, but on the decree of the trial Court being reversed in appeal the money was taken away by the decree-holder, judgment-debtor. The auction-purchasers were made parties to the civil suit and the suit was first decreed by the trial Court, then it was dismissed by the lower appellate Court and was ultimately decreed by the High Court.

(3.) The auction-purchasers first made an attempt to recover the amount taken away by the decree-holders and applied under Secs.144, 147 and 151, Civil P.C., for refund of the amount on the ground that the judgment-debtors had no saleable interest,. The matter came up to the High Court and their application was ultimately dismissed. The judgment is reported as Sahu Deputy Shankar V/s. Mangal Sen 1933 All. 63. We shall refer to it again later.