Skip to content


Smt. Vijai Devi and ors. Vs. Ram Swarup - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 4315 of 1965
Judge
Reported inAIR1975All229
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11, 47, 144 and 151 - Order 21, Rule 93
AppellantSmt. Vijai Devi and ors.
RespondentRam Swarup
Appellant AdvocateS.S. Tyagi, Adv.
Respondent AdvocateGirish Chandra Sharma, Adv.
DispositionAppeal allowed
Excerpt:
.....purchased, and instead of proceeding against the decree-holder or the judgment-debtor whose decree had stood satisfied, proceed to recover the money from jwala prasad......that if the amount could not be recovered from kunwar lal the decree would be executable against jwala prasad. this decree was obtained in 1952. in 1955, the house of kunwar lal was put to sale and ram swarup, respondent in the present appeal, purchased it in the auction sale. kunwar lal filed objections under order 21, rule 90, c. p. c. but before they could be decided the sale was confirmed on 12-4-55. on 15-4-55 the decree-holder withdrew the money and the execution was struck off in full satisfaction of the decree. objections of the judgment-debtor kunwar lal were then taken up and were dismissed. he went up in appeal. the appeal was allowed and the case was remanded to the execution court. the execution court then set aside the sale by allowing the objections. thereafter ram.....
Judgment:

Hari Swarup, J.

1. This appeal has been filed by Jwala Prasad in the matter of execution arising out of proceedings under Section 144, C. P. C. One Murari Lal obtained a decree for Rs. 725 against Kunwar Lal with the condition that if the amount could not be recovered from Kunwar Lal the decree would be executable against Jwala Prasad. This decree was obtained in 1952. In 1955, the house of Kunwar Lal was put to sale and Ram Swarup, respondent in the present appeal, purchased it in the auction sale. Kunwar Lal filed objections under Order 21, Rule 90, C. P. C. but before they could be decided the sale was confirmed on 12-4-55. On 15-4-55 the decree-holder withdrew the money and the execution was struck off in full satisfaction of the decree. Objections of the judgment-debtor Kunwar Lal were then taken up and were dismissed. He went up in appeal. The appeal was allowed and the case was remanded to the execution court. The execution court then set aside the sale by allowing the objections. Thereafter Ram Swarup, the auction-purchaser, filed an application under Section 144 of the Code of Civil Procedure. In this application Jwala Prasad was also made a party. The court directed on 13-4-1957 the execution to proceed for recovery of auction-purchaser's money. This order was put into execution and the house which had been attached and sold earlier was again got attached for sale but upon objections being filed by one Bharose Lal the property was released from attachment. On 3-4-58, the auction-purchaser applied under Section 47, C. P. C. for the sale of the same house. This application was dismissed. He filed an appeal which was also dismissed. In spite of this order the auction-purchaser again moved an application under Section 47, C. P. C. and this time applied for recovery of his money by attachment end sale of the properties of Jwala Prasad. Jwala Prasad filed a suit on the ground that his property was not liable to attachment and sale. Jwala Prasad also filed objections before the execution court to the effect that his property was not liable to sale in proceedings initiated by Ram Swarup. These objections were dismissed. Jwala Prasad then went up in appeal which was also dismissed. He has now filed the present second appeal.

2. The error into which the courts below have fallen is to treat the order passed on the application of the auction-purchaser Ram Swarup under Section 144, C. P. C. as an executable decree. Firstly, the application under Section 144, C. P. C. was totally misconceived and, secondly, any order passed therein could only be an order in the nature of execution and could not amount to an executable decree. Section 144(1), C. P. C., runs as under :

'(1) Where and in so far as a decree (or on Order) is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree (or Order) or such part thereof as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.'

The Court under Section 144 puts the parties back to the same position where they were before the order was passed, which is ultimately reversed. In the present case, no decree or order was reversed so as to attract Section 144, C. P. C. Learned counsel for the respondent, placing reliance on the decision in Jai Berham v. Kedar Nath AIR 1922 PC 269 urged that Section 144 is attracted even where an auction sale is set aside. He also contended that in any case Section 151, C. P. C. was attracted to such proceedings. The passage on which learned counsel relied runs thus:--

'It is the duty of the Court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed..... The auction-purchasers have parted with their purchase money if they paid into Court on the faith of the order of confirmation and certificate of sale already referred to......

It would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction-purchaser the moneys which have been applied for his benefit.'

The same principle was laid down in Nepal Chandra v. Ramendra Nath AIR 1914 Cal 718, where the Court ruled that under the inherent powers of the Court, the execution court should, while setting aside the sale, also direct the decree-holder and the judgment-debtors to bring back into court, for payment to the auction-purchaser the sums which they had withdrawn. In the present case, Jwala Prasad did not get anything out of the money paid by the auction-purchaser. The money went to the decree-holder to satisfy the debt not of Jwala Prasad but of Kunwar Lal.

Order 21, Rule 93, C. P. C. provides : 'Where a sale of immovable property is set aside under Rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.'

Learned counsel contended that Rule 93 quoted above was not applicable because the sale had not been confirmed. If he thought the sale had become absolute, he should have insisted on getting the property and should not have proceeded to realise the money. He has conceded to the order setting aside the sale. If the sale was validly set aside, the provisions of Rule 93 will automatically be attracted.

3. Even if Section 151, C. P. C. were applicable to the facts of the case, that will not entitle the auction-purchaser to leave the property he had purchased, and instead of proceeding against the decree-holder or the judgment-debtor whose decree had stood satisfied, proceed to recover the money from Jwala Prasad. The principle on which Section 151, C.P.C. will apply will be the same as is contained in Order 21, Rule 93, C. P. C.

4. Further, the present proceedings were also barred by the principle of constructive res judicata. As indicated above, the application of the auction-purchaser has been finally dismissed in appeal on 2-12-59. The present proceedings had again been instituted under Section 47, C. P. C. In Maqbool Alam v. Khodaija : [1966]3SCR479 the Supreme Court observed that the principle of res judicata applies also to execution proceedings.

5. The proceedings taken by the auction-purchaser against the appellant were thus misconceived and the property of the appellant was not liable to be attached or sold for the amount which the auction-purchaser may have paid for purchasing the property.

6. In the result, the appeal is allowed, orders passed by the courts below are set aside and the objections of Jwala Prasad are allowed. The application for execution by attachment and sale of property of Jwala Prasad is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //