ABDUL JABBAR Vs. SITA RAM

JUDGEMENT

(1.) This appeal arises out of an execution proceeding instituted by an attaching creditor to enforce the liability of an action-purchaser under Order 21, Rule 71 of the Civil P. C.. It appears that Gopi Ram and others obtained a decree from the Court of Small Causes at Calcutta against Janki Ram and others, which was transferred for execution to the Court of the Munsif of Rasra. In execution of that decree a house was attached as the property of the judgment- debtors and put up to sale on the 17 June 1917. The highest bidder was Sita Ram whose bid amounted to Rs. 5.060, but as he failed to deposit 25% of the sale price the sale officer proceeded to re-sell the property. As the time had advanced he held the resale next day. The property was then purchased by one Gauri Shankar for Rs. 2,850, leaving a deficiency of Rupees 2,210 to be recovered from the previous auction-purchaser. The amin reported that deficiency, as required by Order 21, Rule 71 of the Civil P. C., to the Court by whose direction the sale was held.

(2.) Subsequently an application was made by Janki Ram, one of the judgment- debtors, for the recovery of the deficiency from Sita Ram, the defaulting purchaser. To that application several objections were taken by Sita Ram, one of which, was that the re-sale was not held forthwith and he could not therefore be made liable for the deficiency arising from the re-sale. The Munsif of Rasra upheld that objection; but on appeal his order was set aside and the case was remanded for the determination of the other objections raised by Sita Ram. On appeal the order of remand was confirmed by this Court by a decision which is reported in Sita Ram V/s. Janki Ram AIR 1922 All 200. This Court held that the order of remand was justified and that it would be for the Munsif of Rasra finally and completely to determine, as between the parties, all the points raised by the application of Janki Ram and the objections preferred thereto on the part of Sita Ram. This order was passed on the 3 January 1922.

(3.) What happened after this order was passed is not; quite clear. All that appears is that while the matter was still under enquiry in the Court of the Munsif of Rasra, an order of attachment was obtained by Nur Muhammad on the 9 September 1922 in execution of his decree against Janki Ram from the Court of the Subordinate Judge of Ghazipur in respect of the deficiency which Janki Ram was seeking to recover from Sita Ram. A prohibitory order was served on Janki Ram forbidding him to receive and on Sita Ram forbidding him to pay the said money, and a copy of that order was also sent to the Munsif of Rasra for information and necessary action.