ABDUL KADER Vs. AMBIKA CHARAN BHUIYA

JUDGEMENT

(1.) This appeal is directed against the appellate order of the Additional District Judge of Howrah by which he set aside the order passed by the Court of first instance dismissing the application of the appellant under Section 47, Civil P.C., and Order 21, Rule 90 of that Code and directed further investigation into matters which arose on that application in so far as it purported to be one under Section 47 of the Code. The decree in connexion with which the execution proceedings were started was passed in 1910. There were several execution proceedings with which we are not concerned at the present stage, but the sale in connexion with which the present application was filed took place on the 15 May 1923. The decree- holder purchased the property which had been put up to sale in execution of the decree the sale was confirmed on the 25 June 1923. On the 9 June 1923 the judgment-debtors put in an application under Order 21, Rule 90 for setting the sale aside. This application was dismissed for default on the 18 August 1923. The decree-bolder auction-purchaser thereafter applied for delivery of possession and possession was delivered to him on the 5th January 1924. On the 23 January 1924, another application was filed by the judgment- debtors purporting to be under Section 47, Civil P.C., and Order 21, Rule 90 of that Code, in so far as it purported to be an application under Order 21, Rule 90 it challenged the validity of the sale upon the ground of material irregularity and fraud. In so far as it was under Section 47, Civil P.C., it challenged the validity of the execution proceedings. It was stated in the first instance that the decree had been satisfied by payment out of Court and that the decree- holder, in contravention of the agreement entered into between himself and the judgment- debtors applied for execution of the decree.

(2.) The other ground was that the application for execution was barred by limitation and that the previous execution proceedings which were alleged to have been taken by the decree- holder were fictitious, and further more, that the decree-holder had fraudulently mentioned in his application for execution that he had in the meantime received a payment of Rs. 3 towards satisfaction of his decree. This application, as I have stated, was filed on the 23 January 1924. On the 11 February 1924, the learned Munsif rejected the application. The order which he passed on that date shows that he was of opinion that the application under Order 21, Rule 90 was not entertain able as the previous application filed on the 9 June 1923 had been dismissed for default and that the application in so far as it purported to come under Section 47 of the Code was not entertain able as the execution had already come to an end. This order was not challenged or sought to be set aside either by an application for review or by an appeal, and. on the 29 February 1924, another application in precisely the same terms as the application of the 23 January was filed and it also purported to be under Section 47 and, Order 21, Rule 90 of the Code. On the 20 September 1924, this application was dismissed by the learned Munsif he being of opinion that the execution proceeding's having come to an end no application under Section 47 lay, that the decree-holder was the auction-purchaser and notwithstanding that that was so the application should be treated as raising points between the judgment-debtor on the one hand and the auction-purchaser on the other, and therefore, the application could not be treated as one under Section 47 and furthermore, that the application to set aside the sale was not maintainable by reason of the fact that the previous application for the same purpose had already been dealt with and rejected by the Court.

(3.) Against this order the judgment-debtors preferred an appeal and the learned Additional District Judge was of opinion that the application to set aside the sale was not maintainable because of the rejection of the previous application for the same purpose, but in so far as the validity of the execution proceedings had been challenged on the ground of fraud and limitation the application was maintainable, because the view taken by the learned Munsif that no such application lay after the termination of the execution proceedings was not correct. He was further of opinion that although no appeal had been preferred against the order rejecting the previous application and passed on the 11 February 1924, and although no steps had been taken by the judgment-debtor to have that order reviewed or cancelled the learned Munsif when he entertained the fresh application of the 29 February 1924, must be taken to have exercised some inherent jurisdiction which lay in him and when he treated the order of rejection passed by him as a nullity the judgment-debtors were competent to proceed with the application. Against this order the present appeal has been preferred by the decree-holder.