HARIHAR PRASAD SINGH Vs. BHUBNESHWARI PRASAD SINGH

JUDGEMENT

(1.) This appeal arises out of an application under Section 47, Civil P.C., to set aside an execution sale. The decree under execution was obtained by the appellants in May 1932, against four sets of defendants, out of whom we are concerned with two only, namely, respondents 1 party and respondents 2nd party. It was a joint and several decree for Rs. 3,430 and against the four sets of defendants who each had a four annas interest in the properties to which the decree related. In August 1932 the decree-holders applied for execution against defendants 1 party and defendants 2nd party, who resisted on the ground among others that the decree had already been satisfied. Their objections were overruled, and 6 items of property, 3 belonging to defendants 1 party and 3 to defendants 2nd party, were attached and advertised for sale. The sale was actually held on 24 May 1933, and the decree-holders bought the 3 items of property belonging to defendants 1 party for a price totalling the entire amount for which the execution was levied, with the result that the other 3 items of property were not proceeded against. On 22 June, 1933 defendants 1 party made an application under Order 21, Rule 90, to have the sale set aside.

(2.) In the course of this proceeding they stated on 8 December 1933, that they had come to know of a sale deed executed by defendants 2nd party in favour of the decree-holders by which the decree-holders dues were satisfied. No details were apparently given, but on 17 March 1934, they applied again, saying that they had come to know on 7 December 1933, that half the decree had been satisfied by the sale-deed of defendants 2nd party in favour of the decree-holders and that therefore the sale should be set aside on the ground of the decree- holders fraud. The date of the sale-deed was not given, and the Munsif held that the allegations were irrelevant to the proceeding before him, but that it was open to the objectors to file an application under Section 47 or Order 21, Rule 2, giving the date of satisfaction. On 19 March, the application under Order 21, Rule 90 was dismissed after trial. There was an appeal which was summarily dismissed by the District Judge in April 1934, and then there was an application in civil revision to this Court, which was disposed of by Wort, J., upholding the orders of the lower Courts. The learned Judge dismissed the application on the ground that the satisfaction alleged by the objectors was not a matter under Order 21, Rule 90, and that they, the objectors, had sat down under the order of 17 March, leaving it open to them to apply under Section 47, and he added: The petitioners had certain rights or they must be presumed to have certain rights apart from the question of limitation which I do not propose to deal with, and I assume that those rights exist at the present moment. This Court does not revise the orders of the Subordinate Courts in matters in which the parties have remedies within their own hands as they had in this case.

(3.) About two weeks after this, on 24 September 1934, defendants 1 party applied to the lower Court under Section 47 for setting the sale aside on the ground that the decree had already been satisfied to the extent of half under a sale-deed executed on 28 March 1933, by defendants 2nd party in favour of the decree-holders. The sale-deed in fact says nothing about any satisfaction of the decree; and the learned Munsif dismissed the application, holding as matter of fact that half the decretal dues had not been satisfied and as a matter of law that the application, though headed as an application under Section 47, really fell under Order 21, Rule 2, and was barred by limitation. On appeal the learned Subordinate Judge of the Second Court, Monghyr, differed from the Munsif on both points and allowed the application. The decree-holders have accordingly appealed; respondents 1 party are judgment-debtors 1 party, being the objectors, and respondents 2nd party are defendants 2nd party who executed the kobala in favour of the decree-holders in the name of their nominee, one Babu Hit Narayan Singh.