MURALIDHAR BHATTAR Vs. MAHENDRANATH DAS

JUDGEMENT

(1.) This is an appeal by the judgment-debtors, against an order of the District Judge, setting aside that of an Executing Court, who purporting to act under Section 151, Civil P.C., set aside the sale, held in execution of a decree for rent. The question, whether it was a rent decree, pure and simple, or a money-decree, does not arise in the case.

(2.) The facts, shortly stated, are that a decree for Rs. 668-8-3 was passed against the judgment-debtors, for arrears of rent due in respect of a tenure. Execution was taken out, and the tenure was sold to the highest bidder being the respondent in this appeal. Two petitions were filed in the Executing Court, one by Muralidhar Bhattar, purporting to be one under Order 21, Rule 89, Civil P.C., and the other by Gopi Kissan Bhattar under Order 21, Rule 9. While these petitions were lying un- disposed of, Muralidhar filed a second application labelling it as one under Section 151, Civil P.C., seeking the relief of setting aside the sale, on the ground that the application for execution had been made on behalf of only one or two decree- holders. The Executing Court (Revenue Officer), vested with the powers of trying rent suits under the Orissa Tenancy Act, held that there was abuse of process of Court in putting the tenure to sale in an execution proceeding, which was not maintainable, having contravened the provisions of the Civil P. C. as to the mode of execution of decrees, passed in favour of several decree-holders.

(3.) The auction-purchaser (the respondent in this appeal) went up in appeal to the District Judge, who set aside the order of the Executing Court, and upheld the sale. The main contention, that had been advanced before him, was that the order of the Executing Court, being one under Section 151, Civil P.C., was not appealable. Overruling this contention, the learned District. Judge held that, howsoever the petition might have been worded, the objection, raised, was one under Section 47, Civil P.C. In this view, he held the appeal as competent. On the merits, he came to the conclusion that the provisions of Order 21, Rule 15 of the Code had not been violated as the application, for execution, had been made on behalf of both the decree-holders, related as they were as mother and son. Another objection, such as the one, that has been advanced before us, namely, that the oral application for execution was not made at the time the decree was passed and hence was incompetent, had never been raised before him.