BENI MADHAB MANDAL Vs. RAI CHARAN ABI

JUDGEMENT

(1.) This case raises a question of some importance with respect to the rights of auction- purchasers at a Court sale in execution of a decree. The plaintiff obtained a money decree against, defendants 1 to 4, the sons of one Pitamber Ari to whom the plaintiff had lent money upon the security of a promissory note, to the extent to which the defendants were in possession of assets belonging to Pitambar's estate. On 16 April 1919 the plaintiff himself purchased the property in dispute at a Court sale in execution of the decree. No objection to the sale of this property was raised by the defendants or any of them under Section 47 or Order 21, Civil P.C., or otherwise and in due course an order confirming the sale was passed under Order 21, Rule 92. Thereupon the sale became absolute, and the property was deemed to have vested In the plaintiff as from the date of the sale. (S. 65, and Order 21, Rule 92). The plaintiff thereafter took actual possession of the property, but having been ousted by the defendants 1--4 he brought the present suit to recover possession of the property on establishment of his title thereto.

(2.) At the trial the defendants contended that the property in suit had been sold in execution of an earlier decree against their father Pitambar ; that on 15 December 1915, they had purchased it at a Court sale in execution of that decree ; and that the property was not liable to attachment or sale in execution of the decree which the plaintiff had obtained in 1919. <JGN>Page</JGN> 2 of 4

(3.) Both the lower Courts have held that the sale to the defendants was proved and that the sale to them was valid, and the plaintiff's suit has been dismissed. The plaintiff, however, in the lower Courts and also in the present appeal has contended that inasmuch as the defendants did not prefer any objection to the sale in the execution proceedings they were precluded from challenging the validity of the sale by way of defence to the present suit by the auction purchaser for possession. Now, although the defendants pleaded that they had no knowledge of the decree or of the execution proceedings which culminated in the sale of the disputed property to the plaintiff, no issue was raised in that behalf and no finding was obtained by the defendants in either Court that they were not aware of the decree and of the execution proceedings, or that their want of knowledge was due to the fraud of the plaintiff, and for the purposes of this appeal it must be taken that at all material times the defendants were fully cognizant of the steps that the plaintiff was taking to enforce his claim against the property in suit. In support of his contention the appellant referred to a number of authorities to the effect that all questions relating to the execution, discharge or satisfaction of a decree between the parties to the suit or their representatives must be raised and decided in the execution proceedings, and that: the penalty imposed on a negligent judgment-debtor is set out in Rule 92, and it is that the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. This amounts to a judicial determination that none of the objections exists on which the validity of the sale could have been questioned. (per Walmsly and Suhrawardy, JJ. in Jagneswar Sikhdar V/s. Kailas Mandal .