KISHUN DUTT Vs. GULABCHAND PRASAD

JUDGEMENT

(1.) The question involved in this civil revision is whether a decree-holder has an absolute right to withdraw an execution case, without leave of Court, at any stage of the execution proceedings, while leaving unaffected his right to take out a fresh execution.

(2.) The facts giving rise to it, shortly stated, are: The petitioners 1 party (Nos. 1 to 8) decree-holders, obtained a decree for sale in a mortgage suit against the petitioners 2nd party (Nos. 9 to 13) and the opposite parties. The opposite party No. 1 is admittedly a subsequent purchaser of some interest in the mortgage property in execution of a money decree against one Ajodhya Prasad, one of the members of the joint family of the petitioners 2nd party, since deceased. The mortgage decree was put into execution in 1941 and the execution proceeding dragged on for two years till 6-11-1948 when sale of the mortgaged properties commenced. As the bids were not considered acceptable, it was adjourned to 8- 11-1948, the 7 being a Sunday. On 8 November, a judgment-debtor, one of the petitioners 2nd party, and the decree-holders, alleging that they had come to an amicable settlement, the former paying to the latter a sum of Rs. 1000, in part satisfaction of Abe decree, applied that the sale should not be further proceeded with and the execution case should be dismissed on part satisfaction. It was asserted that this arrangement was reached in order to enable the judgment- debtors to pay the decretal amount, amicably, out of Court, and thereby to save their valuable properties from being sold away.

(3.) The executing Court, however, on the objection of the remaining judgment- debtors, particularly opposite party No. 1, declined to accede to this joint prayer and allowed the sale to proceed. The highest bid offered for the property, lot No. 1, was Rs. 51,700, a sum adequate to satisfy the decree which was in the neighbourhood of Rs. 40,000. Sale of property lot No. 2, was not held as no longer necessary. The highest bidder, however, failed to deposit the earnest money and the identical property .No. 1 was re-sold on 9-11-1943, for a sum of Rs. 52,500. The aforesaid joint petitioners, however, repeated their prayer, by another application, on 9-11-1943, asking for re-consideration of the order passed on the previous date, or, in the alternative, to adjourn the sale for some time in order to enable them to move this Court. This petition too met the same fate as its predecessor and the sale did take place, as stated already on 9-11-1943. The validity of this sale is the subject-matter of consideration in this civil revision and the same is sought to be set aside as ultra vires the executing Court and the execution case to be dismissed on part satisfaction, as prayed in the Court below.