Patna High Court
Akshaya Kumar Mandal vs Binod Kumar Sinha on 1 August, 1967
Equivalent citations: AIR1968PAT181, AIR 1968 PATNA 181
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT N.L. Untwalia, J.
1. The undisputed facts as mentioned in the judgment of the lower appellate court are these A house situate in the town of Monghyr bearing Municipal holding No. 223 belonged to Dayanand Purbey, opposite party No. 2 in the Civil revision and respondent No. 2 in the miscellaneous second appeal Akshaya Kumar Mandal, the petitioner in the civil revision and the appellant in the appeal, filed Monev Suit No. 64 of 1952 against opposite party No. 2 for realisation of Rs 13,000 and odd He finally got a decree on the 26th November 1959. He put that decree in execution in Execution Case No. 4 of 1960 The holding aforesaid was attached in execution of that decree on the 11th February, 1960. The petitioner purchased it for Rs. 4,000 on the 13th July, 1960 (the year 1961 mentioned in the judgments of the Courts below is a mistake). Eventually the sale was confirmed and the petitioner obtained delivery of possession also on the 27th May, 1962
2. Binod Kumar Sinha, who is opposite party No. 1 in the civil revision and respondent No. 1 in the appeal, was a usufructuary mortgagee of the property bearing holding No. 223 for Rs. 7,000. The mortgage had been executed by opposite party No. 2 in his favour, but the latter remained in actual occupation of the house as the tenant of the former Since rent was not paid, opposite party No. 1 obtained a decree for arrears of rent against opposite party No. 2. The decree was put in execution in Execution Case No. 217 of 1957. In this execution case also the holding was attached on 28-2-60. 17 days after it was attached in Execution Case No. 4 of 1960 filed by the petitioner against the same judgment-debtor.
3. Now conies the curious history of the case. When the petitioner obtained delivery of possession on the 27th May. 1962 over the house in question, opposite party No. 1 received Rs. 7,000, his mortgage dues, in full from him, made the endorsement on the usufructuary mortgage bond clearly stating therein that he had received the sum of Rs. 7,000 from Akshaya Kumar Mandal, the auction purchaser of the house. Thus, the petitioner became the full owner of the house after haying purchased it for Rs. 4,000 in the auction sale, and, after having paid Rs. 7,000 to opposite party No. 1. He got unobs-structed delivery of possession, not symbolical but actual, on the 27th May, 1962, after having spent a sum of Rs. 11,000 in acquiring the property. In spite of the clear knowledge of opposite party No. 1 that the petitioner had purchased the property and had got actual delivery of possession after redeeming the mortgage, it is strange that in his Execution Case No. 217 of 1957, opposite party No. 1 got the house sold again on 29-5-62, two days after the delivery of possession in favour of the petitioner, for a sum of Rs. 1,000, the amount of his decretal dues.
4. The petitioner learnt about the sale some time in June, 1962, and filed the application on 28-6-62 for setting aside the sale within 30 days from the date it was held. The application was allowed by the first court holding that the processes in the execution case had not been served on the judgment debtor, that the property was sold for a grossly inadequate price and that the sale held on 29.5.62 was bad. Opposite party No. 1 filed Miscellaneous Appeal No. 30/3 of 1964/65 before the lower appellate court and it, has allowed the appeal and has set aside the order of the learned Munsif setting aside the sale. The petitioner being not sure of the position as to whether his application in effect would be one under Order 21, Rule 90 of the Civil Procedure Code, hereinafter called the Code, or one under Section 47 of the Code, has preferred this Civil revision application as also the miscellaneous second appeal from the same judgment and order of the lower appellate Court.
5. After stating the undisputed facts, as I have mentioned above, the lower appellate court has recorded the following findings :
(1). That there was no substantial material on the record to show that the processes in the execution case were suppressed or that there was any material irregularity in publishing and conducting the sale;
(2). That opposite party No. 1 has purchased the holding for a grossly inadequate price; and (3). That the application filed by the petitioner for setting aside the sale was maintainable under order 21, Rule 90 of the Code as he is a person whose interests are affected by the impugned sale held on 29-5-62.
But, taking the view that in view of his finding that there was no material irregularity in publishing or conducting the sale, the sale could not be set aside under Order 21, Rule 90 of the Code, he set aside the order of the learned Munsif setting aside the sale.
6. In my opinion, the application filed by the petitioner for setting aside the sale was not maintainable either under Section 47 or under Order 21, Rule 90 of the Code. He was not a representative of the judgment-debtor within the meaning of Section 47 of the Code. He had not purchased the property from the judgment-debtor opposite party No. 2 by a private sale. Section 64 of the Code did not make his purchase in court auction in another execution case invalid or void. Moreover, as I have said above, the property had been attached in his execution case before it was attached in the execution case filed by opposite party No. 1. That being so, the case is not covered by the principle of law decided by the Full Bench of the Lahore Court in the case of Bhiku Mal v. Firm Ram Chandar Babu Lal, AIR 1946 Lah 134. It would be noticed that in that case the effect of the sale by the judgment debtor in favour of the person who was attacking the sale was held to be that of a private sale and not a court sale. In that view of the matter, since the property sold was hit by the provisions of Section 64 of the Code, if that sale had taken place after attachment and before the Court sale, it was held that the purchaser had become the representative of the judgment debtor and the provisions of Section 47 of the Code were avail able to him for attaching the sale.
It is well settled that the sale by a judgment debtor to a third party, after the property has been attached in execution of a decree, is not void for all purposes and against the whole world. The mere attachment of the property does not extinguish the title of the judgment debtor The judgment debtor continues to be the owner of the property until the property is validly sold in the execution. The effect of the attachment is prohibiting him from selling the property by private sale But, if he does so, the purchaser has been held to be his representative to seek such reliefs as he can in the execution case under Section 47 of the Code. But, this it, not the case here, aS I have pointed out the distinction, the petitioner had purchased the property in court sale in pursuance of his earlier attachment. Therefore, the attachment effected in the execution case filed by opposite party No. 1 against opposite party No. 2, and the sale held therein did not affect the right, title and interest which the petitioner got by the auction sale held in his execution case on the 13th July, 1961.
7. My attention was also drawn to a Bench decision of the Andhra Pradesh High Court in the case of Veerayya v. Y. Veeraraghavayya, AIR 1961 Andh Pra 298. There, the property was first sold in execution of an award granted by the co-operative Deputy Registrar and then again sold in execution of another decree. In such a situation it was held that although the first purchaser was not a purchaser by a private sale, yet it was open to him to come to the execution court under Section 47 and object to the second sale on the ground that he had already purchased the property. I venture to differ respectfully from this view. The principle decided in numerous cases is that if the purchaser's interest is not affected either by the decree or by the sale, he can neither be treated as a representative of the judgment-debtor within the meaning of Section 47 of the Code nor a person whose interests are affected by the sale within the meaning of Order 21, Rule 90 of the Code
8. I may refer in this, connection to the decision of the Full Bench of the Calcutta High Court in the case of Asmutunnissa Begum v. Ashruff All, (1888) ILR 15 Cal 488 (FB). Considering the provision of Section 311 of the Code, which corresponds to Order 21, Rule 90, where the expression was "any person whose immoveable property has been sold under this chapter may apply," Chief Justice Petheram, delivering the opinion of the Full Bench, said that the sale is not to be set aside unless the purchaser of the property before judgment, as was the case there, proves that he has sustained substantial injury. Therefore, their Lordships said --
"We think that this means that the substantial injury must be the direct result of the irregularity and that this could only be the case where the property of the person applying had not only been put up for sale and knocked down, but had been sold in the sense that the applicant's interest had been legally affected by such sale . As I have said above, in the instant case the petitioner's interest was not legally affected by the second sale."
9. In the case of Jagat Narayan Singh v. Khartar Sah, AIR 1941 PC 45, Sir George Rankin, delivering the iudgment on behalf of the Board had stated, with reference to a subsequent purchaser from the judgment-debtor whose name was Madhusudan Singh that --
"Madhusudau on his own case ought in the later execution proceeding as in the earlier to have made a claim under Rule 58 of Order 21 if he desired to take up the attitude of a third party whose property was being wrongfully taken for another's debt. To treat this objection to the sale as a matter of irregularity in publishing or conducting the sale was not open to him and the application under Rule 90 was altogether misconceived."
Their Lordships of the Judicial Committee also did not seem to have approved the view that Madhusudan was a representative of the judgment-debtor within the meaning of Section 47 of the Code as had been held at an earlier stage of the litigation between the parties. I am, therefore, definitely of the view that the petitioner was neither a representative of the judgment-debtor nor his interest had been affected by the impugned sale. He, therefore, had no right to apply for the setting aside of the sale either under Section 47 or under Order 21. Rule 90 of the Code. His remedy was to apply under Order 21, Rule 58 of the Code before the sale was held. The second sale as against his interest is a nullity. The first sale in favour of the petitioner was not only valid but was accepted as a good and valid sale by opposite party No. 1 when he accepted Rs. 7,000 from the petitioner on the date of delivery of possession in his favour. To his knowledge, therefore, opposite party no 2 had no saleable interest in the property on the 29th May. 1962, when he (opposite party No. 1) again purchased the properly in execution of his decree.
The petitioner is not under a necessity to get rid of the sale. Now the remedy which may be available to him will be to resist the delivery of possession when opposite party No. 1 endeavours to take delivery of possession, although, I hope that being a practising lawyer of Monghyr he will never embark upon this misadventure If, however, delivery of possession is taken out by opposite party No. 1 and resisted by the petitioner, the remedy of the former will be to apply to the execution court under Order 21, Rule 97 of the Code complaining of such resistance and in that proceeding it may be decided whether the resistance is justified; or not. If, however, the petitioner is dispossessed some how or other bv opposite party No. 1, the remedy of the former would be to apply for restoration of oossession under Order 21, Rule 100 of the Code But it is abundantly clear to me that the present proceeding started by the petitioner for setting aside the sale was misconceived and has got to fail as being redundant and not maintainable.
10. Before I part with this case, I may also state that since the sale held on the 29th March 1952 has not been set aside in pursuance of the judgment of the lower appellate Court which Judgment is being upheld by me for different reasons, opposite party No. 1 probably will be hit by the Full Bench decision of this Court in the case of Surendra Kumar Singh v. Srichand Mahata, ILR 15 Pat 308 = (AIR 1936 Pat 97 (FB)) and his remedy to realise his money by second execution will also probably be barred. Of course, this is not a matter which falls for my decision in this case, but I am referring to the decision of the Full Bench for the sake of showing that how opposite party No. 1 is likely to lose his decretal amount because he was ill-advised to put the property to sale on the 29th May, 1962 -- a property which had already been validly sold to the petitioner and not only to his knowledge but to his benefit also.
11. On a consideration of the matter carefully I come to the conclusion that the application for setting aside the sale was not maintainable and hence the order of the first court setting aside the sale was without jurisdiction. Since a miscellaneous appeal was entertained by the appellate court and the order of the first Court was set aside, the setting aside of that order has got to be maintained either by entertaining the miscellaneous appeal on the principle that if a first appeal is entertained by the lower appellate court wrongly, the second appeal to this Court is also maintainable or in the exercise of the revisional powers of this Court. In either view of the matter, both the miscellaneous appeal and the civil revision have got to fail. They are accordingly dismissed. There will be no order as to costs in either of them.