T KESHAVAN Vs. BIPATHUMMA

JUDGEMENT

(1.) This is an appeal from the order of the Additional Subordinate Judge of South Kaaara dated 20 February 19 s9 allowing an appeal from the order of the District Munsif of Kasargod dated 16 January 1926 in E. E A. No 277 of 1925, an application in execution of the decree in O.S. No. 2l o? 192L, on the file of the Court of the District Munsif of Cannanore. The appellant in this appeal was the petitioner in execution and also the plaintiff in the suit. He obtained a decree for a certain amount of money and on his application certain property was attached and sold in March 1925 in execution, the purchaser being himself. The purchase money, viz Rs. 780, was not paid by him but was set off on his application towards the decree amount by the Court, and satisfaction to this extent of the decree was recorded by the Court. In September 1925 he applied to the executing Court to cancel the sale and also to vacate the order setting off the purchase money against the decree amount and to restore the decree to its original condition, so as to enable him to recover the entire decree amount from the judgment-debtors. He claimed in his petition that it was not barred by limitation as he came to know only on 24 August 1925 that the first judgment-debtor had no interest at all in the property that was sold. The District Munsif was of opinion that, so far as the application was one to set aside the sale, it was barred under Art. 166, Lim. Act, under which such application should be made within 30 days from the date of the sale. He found however that though a stranger auction purchaser would, even if his right to apply for setting aside the sale under Order 21, Rule 91, was barred by limitation, have the right to file a separate suit to set aside the sale and to recover the purchase money, the petitioner before him, being the decree-holder himself, had no such right in view of the provisions of Section 47, Civil P. C.

(2.) He then proceeded to express his opinion that as the first judgment-debtor had admittedly no interest in the property sold, the decree-holder purchaser had bought nothing and therefore nothing need be set aside, and that without setting aside the sale it was open to him to set aside the order recording satisfaction to the extent of the amount of the purchase money, namely Rs. 780. He was of opinion that as the question that h9 had to decide was really one relating to satisfaction of the decree, this question which was to be decided by the executing Court could be raised in an application made within three years from the date of the decree, or from the date of the previous step in aid of the execution. On appeal by the judgment-debtors, the Additional Subordinate Judge was of opinion that the executing Court had no right to set aside the order recording satisfaction without setting aside the sale, because if the sale stands, the order recording satisfaction should also stand, the one being a necessary corollary of the other. It was also conceded before him on behalf of the decree- holder purchaser that the Court sale was not exactly a nullity.

(3.) The learned Subordinate Judge also added that where the judgment-debtor has no saleable interest in the property, the only remedy that the decree-holder purchaser has is by an application under Order 21, Rule 91, Civil P. C, and that the sale could not be set aside by the decree-holder purchaser by any other means, and as that remedy by way of an application under Order 21, Rule 91, was barred by limitation, he had lost his remedy. The learned Subordinate Judge relied on the ruling in Muthukumaraswami Pillai V/s. Muthuswami Thevan 1927 Mad 394.