RAMESHWAR LAL JHUNJHUNWALA Vs. RAM CHARAN PRASAD SAHU

JUDGEMENT

(1.) The petitioner was auction-purchaser of a property in execution of a money decree. A third party claimant having established title to the property, the auction- purchaser wanted to get back his money which had already been paid out to the decree-holders. The Subordinate Judge allowed the prayer of the petitioner and passed an order allowing him to recover a sum of Rs. 2425 which the decree- holders had withdrawn. From this decision an. appeal was presented to the District Judge who reversed it.

(2.) In revision it is contended first that no appeal lay and secondly that the Subordinate Judge's order on the decree-holders to repay to the petitioner the sum of Rs. 2425 paid to them out of the sale proceeds was a correct order. As the statement of facts in the order of the Subordinate Judge is incomplete and not quite accurate, I shall restate them. The money decree was passed on 12th December 1929, by the Subordinate Judge at Monghyr, opposite parties Nos. 1 to 5 being the plaintiffs and opposite parties Nos. 6 to 10 the defendants, and this decree is still in force ; it has not been set aside as the Subordinate Judge thinks. The decree was transferred for execution to the Court of the Subordinate Judge at Bhagalpur who attached a certain house as being the property of the defendants judgment-debtors.

(3.) A claim under Order 21, Rule 58, Civil P.C. was presented by Mt. Parbati and was allowed on 12 January 1931. The decree-holders opposite parties Nos. 1 to 5 brought Title Suit No. 108 of 1931 under Order 21, Rule 63 claiming a declaration that the property was the property of the judgment-debtors and was liable to be attached and sold in execution of the decree. In this suit a compromise petition was filed and in pursuance of it a compromise decree was passed on 14th December 1932 declaring the house to belong to the judgment-debtors and giving them time to pay up the decree. The money not being paid, the decree-holders took out execution (No. 58 of. 1933) on which the house was put to sale and sold on 3 July 1933 to the petitioner for Rs. 2755, of which sum the decree-holders withdrew Rs. 2425 on 15 May 1934, after the sale had been confirmed.