MULAY Vs. BALGOBIND

JUDGEMENT

(1.) This appeal is by the defendant and arises under the following circumstances. Respondent Bal Govind held a simple money decree against one Kanak Singh who has since died, and in execution of the decree Kanak Singh's property, which is now in dispute, was attached, Sale proclamation was issued, but no sale was effected. On the 11 of September, 1920, the executing Court passed a certain order, the effect of which has to be considered in this appeal. The order was somewhat in the following language: Since the decree-holder has failed to pay the cost of munadi (proclamation of sale by beat of drums) the execution case be struck off as infructuous the attachment will stand. The execution costs will be paid by the judgment-debtor.

(2.) Four days later, the decree-holder again applied for execution. the Court held that the order dismissing the execution application for default was really a wrong order because nothing whatever was to be done by the decree-holder towards the sale being effected. It, accordingly, proceeded with the execution at the stage is stood, on the 11 of September, 1920. While the second stage of the proceeding was being held, on the 4 of November, 1920, the defendant purchased the property. The attachment effected at the instance of the decree-holder was duly followed by a sale in execution and the property was purchased by the decree- holder the defendant in pursuance of his private purchase obtained an order for mutation of names in his favour and there-fore, the decree-holder purchaser could not obtain a mutation order in the Revenue Court. He, thereupon, instituted the suit for recovery of possession and mesne profits against the purchaser from the judgment-debtor.

(3.) Two points have been urged in this Court. One is that in spite of the order of learned Munsif, dated the 11 of September, 1920, that the attachment should stand it did not stand and secondly, in any case, the appellant should be allowed to retain the property by paying off the decretal amount due to the auction- purchaser as the decree-holder.