AGHA HUSAIN Vs. QASIM ALI

JUDGEMENT

(1.) These execution appeals arise out of an application which was made by certain judgment-debtors on the sole allegation that the decree was incorrectly prepared and had been subsequently amended, and the sale which took place in execution of the incorrect decree should be set aside. There was no allegation of any fraud or collusion, nor was there any denial of the fact that the interests of third parties had come in. It was not expressly stated in the application under what provisions of law it had been made, but the learned advocate for the appellants has stated before us that it purports to have been made under Section 47, Civil P.C. The learned Judge of the Court below has declined to grant this application inasmuch as the judgment-debtors were parties to the proceedings in which the sale was confirmed.

(2.) In our opinion, when the sale has been confirmed although it had taken place in execution of a decree which was incorrectly prepared, the sale cannot be set aside simply because the decree has been subsequently amended. On the date when the sale took place there was a decree binding on the parties as it stood and the sale in execution of it was perfectly legal. The mere fact that it has subsequently been amended or set aside in appeal would not make the sale a nullity. We may refer to the case of Fateh Lal V/s. Sher Singh in support of this view.

(3.) The learned advocate for the appellants relies on the Privy Council case of Prosunno Kumar Sanyal V/s. Kali Das Sanyal (1892) 19 Cal 683. It has, however, to be noted that in that case the allegations of the party wishing to have the sale set aside were that the attachment and the sale had been brought about by fraud and collusion on the part of the judgment-creditors and the auction purchasers, though the charge had been perfectly vague. Under the old Code sales could not be set aside on the ground of fraud under Section 311, but only under Section 214 of the Civil P.C. The remedy of the aggrieved party, as pointed out by their Lordships, was obviously under Section 244, and therefore the mere fact that the purchaser, who was originally no party to the suit, was interested in the result did not matter. Under Order 21, Rule 90, a sale can be set aside on the ground of irregularity as well as fraud. Obviously, therefore, when a sale has been confirmed under Rule 92, it no longer remains open to the judgment-debtor to challenge it under Section 47. Furthermore, as we have said above, there is no allegation of any fraud at all in this case. Their Lordships of the Privy Council have in the case of Zain-ul-Abdin Khan V/s. Muhammad Asghar Ali Khan (1888) 10 All 166 held that if a wrong decree is passed by the Court of first instance, and the sale takes place in execution of it, and a third party purchases the property that sale cannot be set aside merely on the ground that decree is subsequently reversed on appeal.