RAMESHWAR LAL JHUNJHUNWALA AUCTION-PURCHASER Vs. MTSUBDI- CLAIMANT

JUDGEMENT

(1.) The petitioner who was the auction-purchaser of a house in execution of a simple money decree has come up in revision against the order of the executing Court directing that the house be restored to the opposite party whose claim to the property has been upheld in a suit under Order 21, Rule 63.

(2.) The facts have been very clearly stated in the judgment of the learn, ed Subordinate Judge and they are as follows : Ramcharan Prasad Sahu and others who had obtained a decree against Kalicharan Sahu and others attached a house as belonging to their judgment, debtors. Mt. Subdi, the opposite party, preferred a claim under Order 21, Rule 58, Civil P.C., which was allowed on Kith January 1931, and thereupon the decree-holders instituted a title-suit (Suit No. 108 of 1931) in the Munsif's Court of Bhagalpur under Order 21, Rule 63, Civil P.C. The suit was decreed on compromise by which the house was declared to be the property of the judgment-debtor who was given time to pay up the decretal amount. On their failure to do so, the decree-holders executed the decree and the house was sold and purchased by the petitioner. The sale was confirmed and the decree-holders withdrew the decretal amount from the Court. In the meantime Mt. Subdi (or Sarbatia) whose claim to the property under Order 21, Rule 58 was successful instituted a title-suit, (No. 84 of 1933, of the Munsif's Court) to set aside the compromise decree as fraudulent.

(3.) The suit was decreed in the presence of the auction-purchaser, the petitioner. The first title suit brought by the decree-holder was restored and was ultimately dismissed by this Court. The petitioner who by this time had obtained delivery of possession over the property, applied for refund of the purchase money. This was allowed by the executing Court; but this Court in Rameshwar Lal V/s. Ram Charan, reported in A.I.R.1938. Pat. 447 refused the refund on the application as it stood but directed the application to be amended and converted into an application for setting aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold. This has been done, and the application is pending before the learned Subordinate Judge.