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Balwant Singh Vs. Musammat Laiqa Begam and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All273; 75Ind.Cas.238
AppellantBalwant Singh
RespondentMusammat Laiqa Begam and anr.
Cases Referred and Dulla v. Shib Lal
Excerpt:
civil procedure code (act v of 1908), section 144, scope of - auction-purchaser not decree-holder--restitution, whether allowed--judgment-debtor having no saleable interest--sale, whether valid--suit for recovery of possession, whether maintainable. - .....properly or in the alternative for the recovery of rs 500 the value of the said property. both the auction-purchaser and the decree holder were made parties to the suit. the court of first instance dismissed the claim but the lower appellate court decreed it.3. the first question for consideration is, whether section 144 of the code of civil procedure barred the claim. that provision allows restitution to be made against the decree-holder who obtain any benefit under decree which is afterwards revered on appeal. it does not allow restitution to be made against a third party. the auction purchaser in the present instance was not the decree-holder and section 144, civil procedure code has therefore, no application. the object of that section is to place the parties to a decree in the.....
Judgment:

Kanhaiya Lal, J.

1. Premsukh Das held a decree for money against Anwa(sic)ul Hasan. In execution of which he attached certain property. Before that attachment Anwarul Hasan had died and is daughter-in-law, the present plaintiff-respondent, had been impleaded as his legal representative. The plaintiff respondent objected to the attachment of the said property, c ntending that it did not belong to Anwarul Hasan, the deceased juagment debtor. Her objection was disallowed by the Court executing the decree out appeal that objection was upheld and the order of the Appellate Court was finally confirmed by this Court.

2. Meanwhile the property attached had been sold by auction in execution of that decree and purchased by the defendant-appellant Balwant Singh. The present suit was tiled by the plaintiff respondent for the recovery of possession of that properly or in the alternative for the recovery of Rs 500 the value of the said property. Both the auction-purchaser and the decree holder were made parties to the suit. The Court of first instance dismissed the claim but the lower Appellate Court decreed it.

3. The first question for consideration is, whether Section 144 of the Code of Civil Procedure barred the claim. That provision allows restitution to be made against the decree-holder who obtain any benefit under decree which is afterwards revered on appeal. It does not allow restitution to be made against a third party. The auction purchaser in the present instance was not the decree-holder and Section 144, Civil Procedure Code has therefore, no application. The object of that section is to place the parties to a decree in the position which they would have occupied but for such decree or such part thereof as has been varied or revered and the relief allowed by that provision can only be clained against the party to such a decree obtaining the benefit prior to such variation or reversal.

4. The next point for consideration is, whether a suit can be maintained under the circumstances against a bona fide auction-pure aser for value who purchased in execution of decree or order which was subsisting on the date on which the execution sale was held. The original judgment-debtor was not, however, found to ave had a saleable interest in the property sold and if he had no salable interest it was immaterial whether the decree was subsisting or not because the court holding the sale would have in that event no jurisdiction to sell the property. The decisions in Rewa Mahton v. Ram Kishen Singh 13 I.A 106 : 14 C 18 : 10 Ind. Jur. 428 : 4 Sar P.C.J. 746 : 7 Ind. Dec. (N.S.) 13 (P.C.) and Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan 15 I.A. 12 : 10 A. 166 : 5 Sar P.C.J. 129 : 6 Ind. Dec. (N.S.) 112 (P.C.) do not apply because in the former case there were cross-decrees, one of which was sufficient to satisfy the other in execution of, which the sale was effected, while in the latter case the decree had been reversed on appeal, the judgment-debtor having in either case a saleable interest in the property, which could have been conveyed by sale to the auction-purchaser. In the present case the finding of the Appellate Court in the proceeding instituted by the present plaintiff again to the sale of the attached property was that it was not liable to sale in execution of the decree; or, in other words, that the original judgment-debtor had no saleable interest therein. The decisions in Pearev Lal v. Hanifunnissa Bibi 34 Ind. Cas. 303 : 14 A.L.J 302 : 38 A. 240 and Dulla v. Shib Lal 36 Ind. Cas. 281 : 14 A.L.J. 846 : 39 A. 47 also do not apply. In the former the judgment debtor had a saleable interest. In the latter the omission to raise an objection prior to the sale operated as a bar,to the suit.

5. It is also contended that the plaintiff-respondent had withdrawn the surplus sale-proceeds and was thereby precluded from suing for the dispossession of the auction-purchaser. But that money was withdrawn before the objection of the plaintiff to the sale of the disputed property was allowed by the Appelate Court. The learned Counsel for the plaintiff-respondent is willing to refund that money to th auction-purchaser either in this suit or in any proceeding which may hereafter be instituted by the auction-purchaser for the refund of the sale-proceeds. It is open to the auction-purchaser to seek his remedy by a separate proceeding, but so far as the present plaintiff-respondent, who is the legal representative of the deceased judgment-debtor, is concerned, it is desirable that she should not be allowed to obtain possess on without refunding the surplus sale-proceeds which she had receiver and appropriated before her objection was finally allowed. The amount so obtained by her was Rs. 63-6-0. The appeal is, therefore, dismissed except in so far that the plaintiff respondent will not be allowed to obtain possession of the disputed properly without refunding to the defendant-appellant the sum of Rs. 63-6-0 obtained by her out of the sale-proceeds. In view of the bona fides of the auction-purchaser, the parties are directed to bear their own costs throughout.


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