AMAR NATH Vs. FIRM CHOTELAL DURGAPRASAD

JUDGEMENT

(1.) This is an execution second appeal by one Amar Nath who was a surety and against whom the lower Appellate Court has held that the decree of the firm B. Chhote Lal Durga Prasad against the firm Manohar Das Ram Narain could be executed, without deciding other issues. The application for execution was by the imprisonment and arrest of Amar Nath, the surety. The first Court held that the decree could not be executed because the execution application was not maintainable, and did not decide other issues, and on the second appeal before a Bench of two Judges of this Court the Bench has stated that as there were conflicting rulings of this Court the matter should be referred to a Full Bench, and accordingly a Bench of three Judges was constituted, The Bench of three Judges stated that there was likely to be a difference of opinion between them and recommended a larger Bench, and accordingly the present Bench of five Judges was constituted to dispose of the second appeal. The facts of the present case are as follows : In O.S. No. 754 of 1922 there was a decree for the plaintiff on 8th November 1922 for Rupees 538-14-0, and this was upheld on a miscellaneous appeal on 15 December 1932 On 24 March 1927, there was the attachment of a house of the judgment-debtor firm which at that time belonged to Barr, Narain and a compromise was made by which Rs. 10 was to be paid per month by him, and Amar Nath, the present appellant, stood surety for Ram Narain to the extent of the decretal amount, on the date of that compromise, 24 March 1927. On 29 August 1927 Ram Narain died. On 2 August, 1929 there was an execution application for sale of the house as the installments had not been paid. On 14th February 1930 Mt. Basanti Bibi made an objection claiming a portion of the house under Order 21, Rule 58. Her claim was based on the following pedigree:

(2.) The objection of Mt. Basanti Bibi the she as a Hindu widow was entitled to a share in the house was dismissed on 17 February 1930. The decree-holder was therefore aware that there was this objection by Mt. Basanti Bibi and that she had a period of one year within which she could file a suit under Order 21, Rule 63. Nevertheless when the house was put up for sale on 18 February 1930 the decree-holder bought the house for Rs. 570. In the sale proclamation it was represented that the decretal amount due at that time was Rupees 589. An objection was made to the sale by the judgment, debtors, the sons of Ram Narain deceased, but that objection was dismissed and the sale was confirmed on 11th March 1930 under Order 21, Rule 92, and the decree, holder had certified satisfaction of his decree by the sale to the amount of his bid, Rs. 570. The matter therefore closed between the decree-holder and the judgment-debtor by that order of confirmation of sale on 11 April 1930. On 25 July 1931 Mt. Basanti Bibi who had brought a suit on her claim got a decree for possession of the northern part of the house. She valued her claim at Rs. 400 in her plaint. The decree declared that she was entitled to possession of that portion of the house and that the judgment-debtor had no interest in that portion. On 2nd October 1933, the decree-holder applied for execution of the balance of his decree making the following claim: That there was a mistake by him in calculating the decretal amount due on the date of the sale, 18 February 1930, and instead of Rs. 589 there was only Rupees 423-8-0 due to him. His bid was Rs. 570 which he takes to be the value of the whole house. Mt. Basanti in her plaint valued her claim at Rs. 400 and therefore he calculates the portion decreed to her as worth Rs. 400 and the portion remaining with him as worth the difference Rs. 170. Having got satisfaction for Rs. 170 only out of the Rs. 423-8-0 due on the date of sale he claims now for the difference Rs. 253-8.0 and costs.

(3.) We are not concerned with the method of this interesting calculation but only with the question of whether there can be any execution at all of the decree against the surety on the ground that subsequent to the confirmation of the auction-sale there has been a decree in favour of a stranger to the suit holding that that stranger has title to a portion of the house sold and that the judgment- debtor has no title to that portion. It is to be noted that in the present case there was not a total failure of consideration but only a partial failure.Now turning to the Civil Procedure Code, Order 21 allows applications to be made to set aside a sale under Rules 89, 90 or 91 and, in particular Rule 91 provides: The purchaser at any such sale in execution of a decree may apply to the Court to Bet aside the sale, on the ground that the judgment-debtor had-no saleable interest in the property sold.