LAL MEHAR CHAND Vs. LALA JOTI PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal arising out of a suit for a declaration. In order to understand the case it is necessary to bear in mind the following facts: Roop Chand obtained a decree against. Bishambar Das, judgment- debtor, in 1926, Joti Prasad also obtained a decree against the same judgment-debtor in 1927. In. March 1927, Roop Chand applied for the execution of his decree and attached the property which is now in suit. On 8 June 1927, Joti Prasad also applied for the execution of his decree and for rateable distribution. The Court, on 8 July 1927, directed that there should be a rateable distribution of assets. In execution, of the decree which Roop Chand held against the judgment- debtor the property was auctioned on 21 January 1928, and 21 February, 1928 was fixed for the confirmation of the sale. On 10 February, 1928 Joti Prasad made an. application to the Court asking that Roop Chand, decree, holder who had purchased the property at an auction sale, should be ordered to deposit the sale price in Court. On the 21 February 1928 Bishambar Das, the judgment-debtor, sold the property privately to Mehar Chand, plaintiff, and with the sale proceeds paid off the decree of Roop Chand, On the same date Roop Chand appeared in Court and stated that his decree had been satisfied. The Court certified that the decree of Roop Chand was discharged as satisfied and the sale was set aside. In respect of the application which had been made for rateable distribution by Joti Prasad, the Court passed an order that as the sale had been set aside and no assets had been received, the application should be deposited. Later on, Joti Prasad applied for the sale of the same property on 28 February 1928 in execution of his own decree. The property was resold and the sale was confirmed on 31 July 1928. Joti Prasad had not asked, after the termination of the execution proceedings in connection with the decree of Roop Chand, for a fresh attachment. Before the sale in favour of Joti Prasad, the plaintiff. Mehar Chand filed objections under Rule 58, Order 21 objecting to the sale. These objections were dismissed and thereupon Mehar Chand instituted the present suit. The principal plea taken by Joti Prasad was that under the provisions of Section 64 read with Order 21, Rule 55, Civil P.C., the sale in favour of Mehar Chand was void. The first Court decreed the suit of Lal Mehar Chand. Against that decree there was an appeal to the lower appellate Court, The learned Additional Subordinate Judge came to the conclusion that Section 64, Civil P.C., was applicable and that the sale which had been made by the judgment debtor in favour of L. Mehar Chand was void. He therefore allowed the appeal and dismissed the plaintiff's suit. Against that decree the plaintiff has come up in second appeal before this Court.

(2.) The principal question for the determination of this case is as to whether or no, the sale in favour of Mehar Chand made by the judgment-debtor was void having regard to the provisions of Section 64, Civil P.C.

(3.) Before we proceed to deal with the main question involved in this appeal, it is necessary to consider the question of the applicability of Rule 55, Order 21 as amended by this Court. In execution of the decree of Roop Chand, the property attached had been sold on 21 January 1928. Joti Prasad had made an application for the rateable distribution of assets before the date of the sale, but it would appear that somehow this order was not communicated to the sale officer. It further appears from a perusal of the record that after the sale Joti Prasad somehow came to know that notice of his claim for rateable distribution had not been sent to the sale officer in accordance with Rule 55, Order 21, Civil P.C., as amended by this Court. So on the data on which the sale had taken place he made an application to the Court executing the decree asking that the sale officer should be given notice of the application for rateable distribution The Court passed an order that the matter should be immediately communicated to the sale officer, but it appears from the record that the sale officer received that not too two days after the date on which the sale had taken place.