SURENDRA KUMAR SINGH Vs. SRICHAND MAHATA

JUDGEMENT

(1.) The appellant in this case objects to execution proceedings started afresh against him by the respondents in the following circumstances: The respondents obtained a money decree against the appellant, and in execution of it brought certain lands of the appellant's to sale in April 1931 and themselves purchased them. The sale was confirmed in June 1931 and a record was made to the effect that the decree had been fully satisfied by reason of the sale. Later on the respondents came to know that the lands had been previously sold in execution of a rent decree, so that at the time of the sale brought about by the respondents the appellant had no saleable interest in them. Upon this, in January 1933, they made an application under Order 21, Rule 91 for setting the sale aside. This application was obviously barred by limitation and was accordingly dismissed. About six months afterwards the respondents made an application out of which the present appeal arises, asking for fresh execution on the ground that their decree was in fact unsatisfied. The application was resisted by the appellant on the ground that the order in execution entering satisfaction of the decree, not having been set aside by any Court, was a bar to a fresh execution and that therefore the respondents decree-holders, who had lost their remedy under Order 21, Rule 91, were not entitled to maintain the application in question.

(2.) The appellants objection has been overruled by the lower Courts, relying upon certain observations in Firm Ganga Ram-Gulraj Ram V/s. Muktiram Marwari 1931 Pat 405; they have held that the sale in favour of the respondents was a nullity, inasmuch as the property which the Court purported to sell to them had already been sold in execution of a previous decree and therefore could not pass to the decree-holder under the sale. As that view was in conflict with the view taken in Muthukumara Swami Pillai V/s. Muthuswami Thevan 1927 Mad 394, which was followed in Jagannadha Rao V/s. Rachapudi Basavayya 1927 Mad 835 and in this Court in Miscellaneous Appeal. No. 285 of 1934 (decided by my Lord the Chief Justice and Verma, J.). The learned Judges before whom this appeal first came on for hearing, Fazl Ali and Luby, JJ. have made this reference to a Full Bench, formulating the point for decision as follows: Whether a sale of immovable property in which the judgment-debtor had no saleable interest at the date of the sale is a nullity and whether the decree-holder, if he purchases the property, can without taking steps under Order 21, Rule 91, or in spite of having taken steps under that provision and failed to have the sale set aside, successfully maintain an application for the revival of the execution proceedings on the ground that the decree not being satisfied is still liable to be executed.

(3.) Now, it appears at the outset that the point for decision in Firm Ganga Ram- Gulraj Ram V/s. Muktiram Marwari 1931 Pat 405 was whether the executing Court had properly disposed of an application for rateable distribution in ultimately dismissing it and at first ignoring it and confirming the relevant execution sale even after it had been brought to its knowledge that the judgment-debtor's property had already been sold in execution at the instance of another decree- holder. That matter is entirely different from the present case where the propriety of the order confirming the sale cannot be and is not challenged, but the decree- holder merely seeks to ignore that order as well as the order recording satisfaction of the decree on the ground that the decree has not in fact been satisfied by the sale. There cannot, of course, be any dispute that if a property has already been sold in execution of a decree, it cannot be effectively sold again in execution of another decree against the same judgment-debtor unless possibly there is a question of mortgage liens and the like. The first sale operating on the entire interest of the judgment-debtor there would be nothing left for the second sale to operate on. A second sale would therefore really convey nothing to the purchaser, and the question may arise [as happened in Firm Ganga Ram-Gulraj Ram V/s. Muktiram Marwari 1931 Pat 405 whether, vis-a-vis the judgment-debtor, it ought to be confirmed. That however is not what we have to deal with in the present case; the confirmation of the sale, as I have already said, is not in question. It may be indeed, it appears to be the case, that the respondents, if they are right in saying that the property had already been sold in execution of a rent-decree obtained by the landlord, have taken nothing by the sale and that as against the prior execution purchaser they will not be entitled to the property.