SURENDRA NATH DAS GUPTA Vs. SATYENDRA NATH BHATTACHARJYA

JUDGEMENT

(1.) This is an. appeal by the judgment-debtor against an order of the District Judge of Chittagong, dated the 18 March 1925. The facts are these. The properties of the judgment- debtors were put up to sale in execution of a mortgage-decree obtained by the respondents- mortgagees. In execution of that decree the lands described in the boundaries of the mortgage-deed were sold and, purchased by the decree-holders. The decree-holders obtained possession of the properties purchased by them at the auction-sale. In the proceedings in execution the purchasers were obstructed by the judgment-debtors and by an application proceedings under Order XXI, Rule 98 were initiated. That application was made by the auction-purchaser and was headed as an application under Order XXI, Rule 98, C.P.C. The learned Subordinate Judge passed an order adverse to the auction-purchasers and it purported to have been made under the said rule. Against that order the auction-purchasers preferred an appeal to the District Judge. The learned District Judge in that appeal construed the decree,; the mortgage-bond and the sale certificate and made an order in favour of the auction-purchasers and reversed the order made by the Subordinate Judge. The present appeal, as I have already stated, is by the judgment-debtors against that order of the learned District Judge.

(2.) The first point argued in this appeal was that the appeal before the learned District Judge was incompetent as the Code did not allow an appeal against an order passed under Order XXI, Rule 98. The learned Vakil for the respondents argued that the appeal was competent because the questions were decided between the decree-holders and the judgment-debtors under Section 47, C.P.C., and not merely questions under Order XXI, Rule 98. There is a large number of cases on the point in controversy, and I shall refer only to some of them, that is to the cases of Aduram Haldar V/s. Nakuleswar Red Chowdhury 49 Ind. Cas. 137 : 29 C.L.J. 48 and Sasibhushan Mookerjee V/s. Radhanath Bose 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433 in these cases the view that was taken was that in these proceedings the decree-holder qua decree-holder was really not a party. The question was merely between the judgment-debtor and the auction-purchaser and any question which might arise between the judgment-debtor and the decree-holder could not be raised and any decision which was passed relating to the construction of the decree would not be binding against the decree-holders. In that view when proceedings were initiated by the auction-purchaser under Order XXI, Rule 96 and the matter was decided under that rule it must be held that the order was passed under that rule. As any order passed under that rule is not appealable; the appeal before the learned District Judge was not competent and any question which had been decided by the learned Subordinate Judge in the order that he passed as to the construction of the decree or, in other words, a decision on the rights of the decree-holder as against the judgment-debtor was foreign to the proceedings which were before him. Any such judgment would not be binding upon the decree holder. Following the principle laid down in the cases I have cited, 1 think, the order passed by the District Judge in appeal was passed without jurisdiction, as no appeal lay before him.

(3.) The result, therefore, is that we set aside his order and restore the order of the learned Subordinate Judge. As I have already stated it must be distinctly understood that any view taken by the learned Subordinate Judge would not be binding against the decree-holders as decree-holders. The appeal is, therefore, allowed. But in the circumstances of the case there will be no order as to costs.