Patna High Court
Kamla Prasad Missir vs Chanchal Tewari on 19 January, 1967
Equivalent citations: AIR1967PAT430, AIR 1967 PATNA 430, ILR 46 PAT 1003 1967 BLJR 629, 1967 BLJR 629
JUDGMENT U.N. Sinha, J.
1. These two appeals are directed against the Judgment of a learned single Judge of this Court, passed in Miscellaneous 'Appeals Nos. 386 and 387 of 1961, D/- 17-10-1962. These two miscellaneous appeals had been filed by the same decree-holder, and the appeals having been dismissed, the decree-holder has filed these appeals under the Letters Patent of this Court.
2. The facts relevant for the decision are as follows: The decree-holder-appellant had obtained a decree for money against the respondent and he had levied Execution Case No. 292 of 1951 for realisation of his decretal dues. In the execution case, one bigha 17 kathas 2 dhurs of land was sold on the 7th May, 1952 and the decree-holder purchased the property. The sale was confirmed on the 27th June, 1952 and satisfaction of the decree was recorded. Subsequently, one Basdeo Tewari instituted a title suit under the provisions of Order XXI Rule 63 of the Code of Civil Procedure, claiming three-fourths interest in the property sold in the execution case and the suit was decreed. The title suit was numbered as Title Suit No. 35/24 of 1953/54 and the plaintiff of that suit obtained a declaration to the effect that the sale held on the 7th May, 1952 was not binding on the plaintiffs three-fourths interest in the property.
Thereafter, the decree-holder filed an application before the executing court, seeking permission to execute his decree for realisation of three-fourths of the decretal amount and the case was registered as Miscellaneous Case No. 129 of 1958. In this miscellaneous case the decree-holder was granted permission to levy fresh execution for realisation of three-fourths of the decretal amount. Thereupon the decree-holder levied Execution Case No. 315 of 1958 on the 27th June, 1958. In that execution case, one bigha and odd of land was sold on the 7th October, 1958 and was purchased by the decree-holder himself. The sale was confirmed in due course and delivery of possession was effected. Thereafter, the judgment-debtor filed two applications contending that the permission granted to the decree-holder for levying fresh execution was illegal and challenging the legality of the sale held in the second execution case. These two applications were registered as Miscellaneous Cases Nos. 280 and 281 of 1958 and these two appeals have arisen out of these miscellaneous cases.
The executing court allowed the judgment-debtor's applications, holding that the sale held in Execution Case No. 315 of 1958 was null and void and without jurisdiction. The appeals filed by the decree-holder in the first court of appeal failed and his appeals in this Court in the two miscellaneous appeals have also failed.
3. It has been contended by the learned counsel for the appellant, that, there was no illegality in the sale held in Execution Case No. 315 of 1958, for the realisation of three-fourths of the decretal dues, as in effect, the sale held on the 7th May, 1952 must be deemed to have been set aside to the extent of three-fourths share of the property purchased by the decree-holder, as a result of the decree passed in the title suit instituted by Basdeo Tewari. The learned counsel has relied upon the decision of this Court in Radha Kishun Lal v. Kashi Lal reported in AIR 1924 Pat 273. It is contended that the case of Mt. Bibi UmatuI Rasul v. Mt. Lakho Kuer, reported in AIR 1941 Pat 405 has erroneously been relied upon by the learned single Judge in rejecting the decree-holder's contentions. In my opinion, Radha Kishun Lal's case AIR 1924 Pat 273 cannot be taken to support the contentions raised by the learned counsel for the appellant. What had happened in that case was that two lots of property had been sold in execution of a decree and lot No. 1 was purchased by the decree-holder and lot No. 2 was purchased by a third party. The sale of lot No. 2 was ultimately set aside for some irregularity. Thereafter, the decree-holder levied fresh execution to recover the whole of the Judgment-debt This was done because one Firangi Lal had brought a suit against the decree-holder and the judgment-debtor for declaration of his title to lot No. 1 and for possession. That suit was decreed. In these circumstances, this Court held that the effect of the decree passed in favour of Firangi Lal was to set aside the sale and, therefore, it was not necessary for the executing court to cancel the order of satisfaction of the decree. Thus it was held that the decree-holder could proceed to recover his decretal debt by a fresh execution. In the instant case, however, it is not possible to hold that the effect of the decree passed in the suit instituted by Basdeo Tewari was to set aside the sale partly with respect to three-fourths share of the property purchased by the decree-holder on 7th May, 1952. Even the decree-holder proceeded in the second execution case on the footing that the sale held in 1952 was good to the extent of one-fourth share of the property purchased by him.
In the case of Mt. Bibi Umatul Rasul, AIR 1941 Pat 405, the decree-holder-respondent had obtained a decree for money and in execution thereof certain property was attached as belonging to the judgment-debtor appellant. The property was sold and the sale was confirmed. Satisfaction was entered. But, in the meantime, a suit had been instituted by a claimant under Order XXI, Rule 63 of the Code of Civil Procedure against the decree-holder and the judgment-debtor. The suit succeeded ultimately and thereupon the decree-holder applied afresh for execution of the same decree. The judgment-debtor objected to the fresh execution on the ground that so long as the sale stood, the decree-holder was not entitled to execute the decree afresh. The court held, following Radha Kishun Lal's case, AIR 1924 Pat 273 that the effect of the decree obtained by the claimant was to set aside the sale and no formal order to that effect was necessary. In this decision reference has been made to the case of Amar Nath v. Firm Chotelal Durgaprasad, reported in AIR 1938 All 593 (FB) and I am of the opinion that the ratio of that decision is applicable in the instant case.
In Amar Nath's case AIR 1938 All 593 (FB) the plaintiff had obtained a decree for some amount of money and an application for execution was made by sale of a house. A lady made an objection under Order XXI, Rule 58 of the Code of Civil Procedure, claiming a share in the house. The objection was dismissed and the decree-holder purchased the house in a execution sale. The sale was confirmed and satisfaction was entered. The lady had, in the meantime, brought a suit on her claim and obtained a decree for possession of a part of the house. Thereafter, the decree-holder applied for execution of the balance of his decree. A Full Bench of five learned Judges of the Allahabad High Court held that as regards a decree-holder, who has purchased at auction sale, his rights are limited to those granted under Order XXI, Rules 91 and 92 of the Code of Civil Procedure, and if the auction sale is confirmed that becomes res judicata between him and the judgment-debtor and he cannot reopen the matter by a mere application for further execution, unless he can get the order confirming the sale set aside. The judgment of the Allahabad High Court has dealt with the question from all possible aspects and I consider, respectfully, that the correct conclusion was arrived at.
Reference was made to a Full Bench decision of this Court, in the case of Surendra Kumar Singh v. Srichand Mahata, reported in AIR 1936 Pat 97 (FB) where the principle under consideration was enunciated thus:--
"(a) A sale of immovable property in which the judgment-debtor has no interest at the date of the sale is not a nullity in the sense of being beyond the jurisdiction of the executing Court or void as between the judgment-debtor and the decree-holder or auction-purchaser, and
(b) the decree-holder, if he purchases the property, cannot successfully maintain an application for the revival of the execution proceedings on the ground that the sale has not in fact satisfied his decree to the extent of the sale price, unless he has the sale set aside by applying under Order 21, Rule 91."
There is no reason to hold that the decision of the Allahabad Full Bench, AIR 1938 All 593 was in any way dissented from by this Court in Bibi Umatul Rasul's case, AIR 1941 Pat 405 although the decision of this Court was based on a different principle on the ground that the suit instituted under Order XXI, Rule 63, of the Code of Civil Procedure was with respect to the entire property which had been sold in execution.
It may even be said that the principle of the Allahabad Full Bench decision was approved by this court in Bibi UmatuI Rasul's case, AIR 1941 Pat 405 which can be gathered from the following observations:--
"'Thereafter the decree-holder on the 2nd October, 1933, applied for execution for the balance of his decree after giving credit for the amount which according to his calculation represented the price of that portion of the house with regard to which his title under the auction purchase remained unaffected by the decree passed in the suit under Order 21, Rule 63, Civil P. C. in favour of Mosst. Basanti Bibi. It will be noticed, therefore, that in that case the sale in favour of the decree-holder dated 18th February 1930 was not set aside. All that was held was that the decree-holder by his sale had purchased only a portion of the house for which he paid the full price. The learned Acting Chief Justice who delivered judgment himself observes at page 594:--
'It is to be noted that in the present case there was not a total failure of consideration but only a partial failure,' In other words, the sale meaning the entire sale, was not set aside there could be no partial setting aside of the sale."
In the instant case also, the sale in its entirety has not been affected as neither the sale has been set aside nor has any decree held that the sale was not binding on any part of the property sold. In Amar Nath's case AIR 1938 All 593, the Full Bench had noticed an earlier decision of the Allahabad High Court in the case of Anand Krishna v. Kisnan Devi, reported in AIR 1931 All 377 where a similar point has been dealt with. Learned counsel for the appellant has argued that Anand Krishna's case, AIR 1931 All 377 had been dissented from by the Allahabad High Court in the case of Amba Lal v. Ramgopal Madho Prasad, reported in AIR 1933 All 218. But this matter was noticed by the Full Bench in Amar Nath's case, AIR 1938 All 593, in coming to the conclusion, referred to above. Therefore, in my opinion, as long as the sale held on the 7th May, 1952, stands the decree holder cannot execute his decree on the allegation that his decree has not been satisfied in full.
4. Learned counsel for the appellant has also relied upon Order XXI, Rule 60 of the Code of Civil Procedure as it stands amended by this court. Rule 60 of Order XXI runs as follows:--
"Where upon the said investigation the court is satisfied that for the reasons stated in the claim or objection such property was not, at the date of the decree, or when attached, as the case may be, in the possession of the judgment-debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him or that, being in the possession, of the judgment-debtor at such time, it was so in his possession, not on his own account or as hiS own property, but on account of or in trust of some other person, or partly on his own account and partly on account of some other person, the court shall make an order re-leasing the property wholly or to such extent as it minks At, from the execution proceedings, or from attachment.
Where the property has been sold, such order shall have the effect of setting aside the sale; and if it has been purchased by a third party in good faith the Court may make such order for his compensation by the decree-holder or objector, to an extent not exceeding 121/2 per cent. of the purchase price as he thinks fit."
It is contended that the suit instituted by Basdeo Tewari was in effect a proceeding for review of the order confirming the sale and if the sale in this case is not binding on 12, annas share of the property sold, there can be no obstacle in the way of the decree holder in executing his decree afresh, for the balance of the duas. In support of the proposition that a suit instituted under Order XXI, Rule 63 of the Code of Civil Procedure is for the purpose of reviewing the confirmation of sale reliance is placed on a decision of the Privy Council in the ease of Sm. Bibi Phul Kumari v. Ghanshyam Misra, reported in (1908) 65 Ind App 22 (PC). But in my opinion, the contention raised by the learned counsel based on Order XXI, Rule 60 is not at all valid. The procedure under Rule 60 follows a claim made under Rule 58 of Order XXI, and the investigation made under Rule 60 is for the purpose mentioned in that rule itself. No doubt this court has incorporated in Rule 60 a provision that if the attached property is released, wholly or in part, and the properly has been sold, such an order of release shall have the effect of setting aside the sale. Here again, an order passed under Rule 60 has the effect of setting aside the whole of the sale and not part of it. In the instant case, the decree holder does not purport to contend that the whole of the sale has been set aside by any order of any kind. There Fore, it is not possible to hold that the decree-holder can take recourse to Order XXI, Rule 60 for the proposition urged by learned counsel for the appellant I do not think that any case has been made out by the learned counsel in support of his appeals. I must make it clear, however, that we do not hold in this ease that a decree holder could have applied under Order XXI, Rule 91 of the Code of Civil Procedure, on the facts of the instant case for setting aside of the sale held in 1952 in its entirety. It is enough to hold that as long as that sale stands, the decree holder could not have levied a fresh execution as he did in 1958. The appeals, therefore, fail and are dismissed. As the learned Single Judge had not passed order for costs in disposing of the appeals before him, I would also make no order as to costs in these appeals.
Narasimham, C.J.
5. I agree.