SHIVBAI BABYA SWAMI Vs. YESU CHEOO NAYAKIN

JUDGEMENT

(1.) The plaintiff Yesu got an ex parte decree for Rs. 86 against the defendant Shivbai in 1906. Shivbai s house was sold in execution of that decree in 1910, but she succeeded in subsequently getting the ex parte decree set aside and in having the case retried. The plaintiff Yesu succeeded in the retrial in obtaining a decree against the defendant Shivbai for a sura of Rs. 87 in 1914. But Shivbai then applied to have the previous sale of the house in execution set aside. That application was granted by the Court of first instance, but was rejected by the Court of first appeal which appears to have treated the application as one under Section 47 of the Civil Procedure Code. Shivbai has accordingly come to get that decision set aside in second appeal.

(2.) The substantial point argued has been whether in the circumstances stated the previous sale of the house in execution could be set aside, and reliance has been placed for the finding in the negative upon the case of Shivlal v. Shambhuprasad (1905) 7 Bom. L.R. 585 F.b.. But it has been replied to that argument that that case referred particularly to the equities arising in favour of a third party being a bona fide purchaser for value without notice at the Court-sale. It seems to me that there is force in this argument, particularly in view of the remarks of the Privy Council in the case of Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan (1887) I.L.R. 10 All. 166, 172, P.C., in which their Lordships of the Privy Council pointed out at page 172 that "there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order." That distinction has recently been again referred to in the case of Set Umedmal v. Sri Nath Ray (1900) I.L.R. 27 Cal. 810. It seems to me, therefore, upon the equities and upon the authorities that the previous sale of the house in execution under the previous decree which had been set aside ought itself to be set aside as being no longer based on any solid foundation.

(3.) There was also some argument as to the particular rule under which such an order could be made. It seems to mo that the order must be held to be made, as decided without subsequent objection by the first appeal Court, under Section 47 of the Civil Procedure Code, and if any further authority for such an order should be required, then it seems to me that a reference could be made either to Section 144 or Section 151 of the Civil Procedure Code. It has been urged that the former section does not cover a case in which an ex parte decree has been set aside. But it seems to me that the words used are sufficiently wide to cover even such a case though the use of the word varied or reversed and the reference to the Court of first instance would appear on first sight to have had primarily in view, proceedings in appeal. But however that may be, the case would, in my opinion, undoubtedly be covered by Section 151 of the Civil Procedure Code. There can, in my opinion, be no real doubt in such a case as to there being a second appeal, because the proceedings were, as already stated, under Section 47 to which it has merely become necessary by reference to apply the provisions of Section 144 or 151 of the Civil Procedure Code.