SHIAM LAL Vs. GIRRAJ KISHORE

JUDGEMENT

(1.) Shib Singh and his brother got a decree (No. 202 of 1912) for costs for Rs. 56 against Fateh Singh. This same Fateh Singh had a revenue Court decree (No. 28 of 1916) for Rs. 189-11-9 against Shib Singh and his brother. Shib Singh proceeded to execute the decree and attached the Decree No. 28 of 1916 of Fateh Singh. It was put up for auction, and one question that has been argued before us in this case is whether that was, in view of the terms of Order 21, Rule 53, a proper procedure. At the sale the property was purchased by Shiam Lal, the present appellant here, for the sum of Rs. 50. Shiam Lal was the clerk of a pleader of Shib Singh. No objection was made by either Shib Singh or by Fateh Singh to this purchase by Shiam Lal; that is to say, neither of them raised an objection that, under the terms of Order 21, Rule 73, Shiam Lal, as clerk of the decree- holder's pleader, was prohibited from purchasing. This is another question with which we are concerned.

(2.) Subsequently, Shib Singh actually with drew the Rs. 50. Next come the proceedings which are alleged by the present appellant to have been, and which indeed appear to have been, fraudulent. Fateh Singh, notwithstanding the fact that his decree (No. 28 of 1916) had been sold, proceeded to execute it against Shib Singh. What exactly then followed has not been made very clear; but it is clear enough for the purposes of the present appeal that Shib Singh objected, and in the event Fateh Singh and. Shib Singh compromised the matter on certain terms, with which we are not concerned. Some time afterwards was instituted the present suit. Shiam Lal did not proceed to execute the decree against Fateh Singh which he had purchased, but sued Fatch Singh and Shib Singh for recovery of the whole of the amount of that decree as on the date of the compromise. This sum he claimed from Fateh Singh alone, but in the alternative he claimed Rs. 50 from Shib Singh and the balance from Fateh Singh. Shib Singh made no defence. Fateh Singh set up the defence that the purchase by Shiam Lal was a nullity relying upon Order 21, Rule 73 and urging that a pleader's clerk could not buy at the auction sale. This defence found favour with the trial Court. On appeal the lower appellate Court not only agreed in this view but went on to hold that in view of the terms of Order 21, Rule 53 a decree that has been attached could not be sold and the procedure provided by Order 21, Rule 53 must be followed. Shiam Lal appeals to this Court, urging that the view of the lower appellate Court on both points was wrong.

(3.) The case, first of all, came before our brother, Mr. Justice Mukerji, who referred it to a Division Bench in regard to the effect of Order 21, Rule 73. He pointed out that the question is not covered by any authority and we fully agree with him that it is an important point in relation to the conduct of a legal practitioners clerk. He did not refer the question of the effect of Order 21, Rule 53, no doubt, because he had already expressed his views in Fateh Lal V/s. Sher Singh A. I. R. 1925 All. 264 , but at the same time he referred the whole case and we have to deal with it.