AMOLAK CHAND-MEWA RAM Vs. MOHAMMAD SHAFI

JUDGEMENT

(1.) This second appeal has arisen in the following circumstances. The house in dispute belonged to Ranglal, defendant 1. He sold the same to one Pt. Jai Dev Sharma and others by means of a sale deed dated 20 November l936. On 22- 11-1986, firm Amolak Chand Mewa Ram appellants in the present secord appeal and defendant 5 in the suit, out of which this appeal has arisen, attacked, the said house in execution of a simple money-decree obtained by them against the aforesaid Rang Lai. Jai Dev Sharma and the other purchasers objected to the attachment under Order 21, Rule 58, Civil P.C. but their objections were disallowed by the executing Court. They then filed a suit under Order 21 Rule 63, Civil P.C., to establish their title to the attached house. The firm Amolak Chand Mewa Ram, the attaching decree-holders, withdrew the attachment and allowed the suit under Order 21 Rule 63, Civil P.C., brought by Jai Dev Sharma and there to be decreed on 12 November 1937. In the meanwhile, on 24 February 1937, Captain Sardar Surendar Pal Singh, defendant 2 in the suit giving rise to this appeal, had sued out execution of his simple money decree against the aforesaid Bang Lai by attachment of the same house. The attachment was effected on 19 March 1937 and on 11 June 1937 an order was made for the sale of the attached house. Firm Amolak Chand Mewa Ram and some other decree-holders of Bang Lai applied for execution of their respective decrees by rateable distribution of the assets to be received on the sale of the house. Objections filed by Pt. Jai Dev Sharma and his co-vendees under Order 21, Rule 58, Civil P.C., were disallowed by the executing Court. After the disallowance of these objections the house was sold on 3 July 1937 and was purchased by Mohammad Shan plaintiff for a sum of Rs. 2,200. The sale proceeds after deduction of the auctioneer's commission were rateably distributed amongst the various decree-holders, firm Amolak Chand Mewa Ram getting Rs. 666-10-0 as their rateable share. Some time after the sale, Jai Dev Sharma and his co-purchasers brought a suit under Order 21, Rule 63, Civil P.C., for a declaration that the house was not liable to attachment and sale in execution of the decree of defendant 2 against Rang Lai, defendant 1. The suit of Jai Dev Sharma and others was decreed by the first Court on 10 July 1938. The decree was affirmed on appeal by the District Judge and a second appeal from the said decree filed in the High Court also was dismissed on 21 April 1943. After having exhausted his remedies by way of appeal and second appeal the plaintiff brought the suit, out of which this second appeal has arisen, for a refund of the sale price on the ground that the judgment-debtor had, at the time of the sale in his favour, no saleable interest in the house in dispute. He alleged that Captain Sardar Surendar Pal Singh defendant 2, was responsible for the refund of the, whole of the sale price, including the commission paid to the auctioneer, became it was due to fraudulent representations, made by him that the plaintiff was induced to purchase the property. In the alternative it was claimed that each of the decree-holders who md got rateable-distribution must be made to refund the amount received by such decree-holder by way of such rateable distribution. The learned Subordinate Judge, who tried the suit, granted the plaintiff a decree for recovery of a sum of Rs. 2090 out of the sale price, paid by him, holding each of the decree-holders defendants responsible for the amount received by such decree-holder by way of rateable distribution, Defendants who had been held liable for a sum of Rs. 655-10-, alone appealed to the learned District Judge from the decree of the learned Subordinate Judge, but without success. He has come up in. second appeal to this Court.

(2.) The learned trial Judge found against the plaintiff in so far as his contention as to defendant 2 being guilty of fraud or collusion or of making false representations was concerned. He, however held that the plaintiff was entitled to the refund of the, price paid by him by reason of the judgment-debtor having no saleable interest at all in the house sold.

(3.) Before the learned District Judge the decision of the learned Subordinate Judge was contested only on two grounds, namely, (1) that an auction-purchaser of property in which the judgment-debtor is discovered to have had no saleable interest at the time of the execution sale has no remedy except that given to him by the provisions of Order 21, Rules 91 and 93, Civil P.C., and that if he fails to apply for the setting aside of the sale under Rule 91 and for refund of the sale price under Rule 93, he can claim no relief in respect of the price paid by him and (2), that the learned trial Judge wrongly applied Art. 120, Limitation Act to the suit and erroneously held the same to be within limitation, the suit being really governed by Art. 62, Limitation Act and having been brought much more than 8 year after the receipt of the money by the appellant,, being hopelessly barred by time. The learned District Judge overruled both these contentions of the appellant. In arguing the present second appeal Mr. D.N. Aggarwal contested the correctness of the decision on both these points.