MOTI LAL Vs. BHAGWAN DAS

JUDGEMENT

(1.) THE respondent, Bhagwan Das, obtained a money-decree against Shiam Lal, Mulchand, Sardar Singh and Puran Chand and in execution of that decree caused a house to be attached. That house had been sold to the plaintiff by the guardian of the minors, judgment-debtors, on the 9 of June 1904. THE suit out of which this appeal has arisen was brought by the purchaser Moti Lal for a declaration that the house in question was not liable to sale in execution of the decree held by Bhagwan Das against his judgment-debtors. THE Court of first instance found that the sale in favour of the plaintiff was a real transaction but that Rs. 417 out of the consideration remained unpaid and, therefore, the vendors had a lien on the house for the aforesaid amount of purchase-money. It made a decree declaring the sale to be genuine but it further declared that the decree-holder was entitled to realise Rs. 417, the unpaid purchase-money by sale of the house. This decree has been affirmed by the lower appellate Court. THE plaintiff contends that as according to the finding of the Courts below the sale in his favour was a genuine transaction, the house sold cannot be brought to sale as the property of the judgment-debtors. This contention is in our judgment well-founded. As we have stated above, the sale has been found to be genuine. THErefore, the ownership of the property has passed to the plaintiff. If a part of the consideration has remained unpaid, as found by the Courts below, the vendors have a lien on the property sold for the unpaid purchase-money, but that does not entitle the decree-holders of the vendor to bring the property to sale in execution of his decree as the property of his debtors. He may attach the unpaid portion of the purchase-money which is due to his judgment-debtors and enforce the lien on the house for the said money but he cannot cause the house purchased by the plaintiff to be sold for the recovery of the unpaid purchase-money to which he, as decree-holder, is not entitled. We think that the Courts below were wrong in holding that the decree-holder is entitled to realise the unpaid purchase-money in execution of his decree by sale of the property which the plaintiff has purchased. We, accordingly, allow the appeal and decree the plaintiff's claim but under the circumstances make no order as to costs.