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Gitabai Kanhaiyalal and ors. Vs. Daulatrao Krishnarao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal Nos. 135 and 140 of 1959
Judge
Reported inAIR1962MP62
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 64 - Order 21, Rule 95
AppellantGitabai Kanhaiyalal and ors.
RespondentDaulatrao Krishnarao and anr.
Appellant AdvocateJ.D. Patel, Adv.
Respondent AdvocateG.M. Chafekar, Adv.
DispositionAppeal allowed
Cases ReferredManicka Chettiar v. Rajambal Ammal
Excerpt:
- - 6. this contention is clearly untenable. this is clearly a case to which section 47 c......securing an order for attachment, he got the property of mulchand attached on 8-7-1938. later the suit was decreed against mulchand. ramchandra babulal then applied for execution. the property already attached before judgment was re-attached in execution. an objection to this attachment was made by one bhikumal as the legal representative of one khemchand who was said to have purchased the property with the leave of the court in execution of his another decree against the same judgment-debtor. the objection was allowed and the property was released from attachment. thereupon ramchandra babulal filed a regular suit under order 21 rule 63 c. p. c. it was under these circumstances that the following question was referred to the full bench: 'whether the suit brought by ramchandra babulal.....
Judgment:

V.R. Newaskar, J.

1. These two appeals arise out of execution proceedings under the following circumstances:

2. One Daulatrao obtained a money decree on 31-10-47 against Pandurang. He had during the pendency of that suit obtained an order for attachment before judgment against Pandurang and in execution of that order got the houses alleged to belong to Pandurang attached including the house in question on 17-6-1947. After the decree was passed Daulatrao filed execution petition No. 29 of 1957 and got the house in dispute sold in Court auction and purchased it himself on 24-1-1959. He later obtained sale-certificate in respect of the said house on 9-5-1959. He then sought possession of the said house. This was resisted by the appellants Dhulibai, Gitabai. Gulabbai, Kisan and others on the ground that they had lawfully purchased the house from the judgment-debtor subsequent to the date of attachment before judgment. The decree-holder Daulatrao thereupon submitted an application to the executing Court under Order 21 Rule 95 C. P. C. contending that as the alleged sale was subsequent to the date of attachment it was void as against the claim enforceable under the said attachment. The application of the decree-holder was allowed after giving a hearing to the prior purchasers and a warrant for delivery of possession was issued as against the claimants and their tenants. Dhulibai preferred appeal No. 140 ot 1959 and Gitabai, Gulabbai and Kisan preferred appeal No. 135 of 1959 against this order,

3. These appeals are heard together as they arose out of same' order, related to the same house title whereof is claimed by both the sets of the appellants under the same transaction of sale which was effected by judgment-debtor subsequent to the date of attachment before judgment.

4. It is contended in these appeals that the Court below summarily allowed the application of the decree-holder Daulatrao under Order 21 Rule 95 C. P. C. without making any enquiry which was indispensable under the circumstances of the case. The reason suggested for such enquiry was that the appellants had challenged the legality of attachment before judgment and also had asserted that Soudargarsingh the predecessor in interest of Gulabbai and Kisan, Dhulibai, Shafi Ahmad and Gitabai had purchased the disputed house after securing consent of the decree-holder and at a time when his prior execution petition had been dismissed and no fresh attachment had taken place in any subsequent execution petition filed by him.

5. A preliminary objection was raised on behalf of the respondent Daulatrao that the appeals are not competent as the order against which they are directed does not amount to a decree.

6. This contention is clearly untenable. The dispute in this case is between the decree-holder auction-purchaser and the purchasers under a private sale by the judgment-debtor. This is clearly a case to which Section 47 C. P. C. will apply because the dispute is between the parties to the suit or their representatives. The Full Bench decision in Bhiku Mal v. Firm Ram Chandar Babu Lal, AIR 1946 Lah 134 fully supports this view. The facts of that case in so far as they are material for our present purpose are:

Ramchandra Babulal filed a suit for money against one Mulchand and, after securing an order for attachment, he got the property of Mulchand attached on 8-7-1938. Later the suit was decreed against Mulchand. Ramchandra Babulal then applied for execution. The property already attached before judgment was re-attached in execution. An objection to this attachment was made by one Bhikumal as the legal representative of one Khemchand who was said to have purchased the property with the leave of the Court in execution of his another decree against the same judgment-debtor. The objection was allowed and the property was released from attachment. Thereupon Ramchandra Babulal filed a regular suit under Order 21 Rule 63 C. P. C. It was under these circumstances that the following question was referred to the Full Bench: 'Whether the suit brought by Ramchandra Babulal was competent under Section 47 C. P. C.?'

7-8. The Full Bench answered the question in the negative. Harries C.J., who delivered the opinion of the Full Bench, after reviewing the authorities on this point observed:

'The authority in favour of holding that the purchaser in the present case is a representative of the judgment-debtor is overwhelming and I would, therefore, hold that in the present case the purchaser Bhikumal the present defendant, is a representative of the judgment-debtor Mulchand. That being so, I would answer the learned Single Judge's question by stating that a suit is not competent by reason of Section 47 C. P. C. ......'

9. The circumstances of the present case are more or less the same except that there was the private sale in favour of third party made by the judgment-debtor subsequent to attachment before judgment and the dispute arose not in a separate suit but in the course of execution itself. Since the position of the appellants in both the appeals is the same as that of Khemchand in the aforesaid case it is clear that they would be the representatives of judgment-debtor. Thus the dispute being between the decree-holder Daulatrao and the representatives of the judgment-debtor i.e., the appellants no separate suit was competent and the matter had to be considered in execution. The order-passed in execution by the Court of first instance is therefore tantamount to a decree.

10. The decision in AIR 1946 Lah 134 (FB) is followed by another Full Bench decision of the same High Court reported in Mt. Sant Kaur v. Tejasingh, AIR 1946 Lah 142 (FB) where the principle is more broadly put that the word 'representative' in Section 47 C. P. C. has a much wider meaning than the word legal representative and includes not only a legal representative but any representative in interest i.e., a transferee of the interest of a party whether by assignment, succession or otherwise i.e., even by the auction-sale held in execution of another decree against the same judgment-debtor. The decision in Manicka Chettiar v. Rajambal Ammal, 1955-2 Mad LJ 357 is also to the same effect.

11. It is therefore clear that a separate suit is not competent and the present appeals are competent.

12. Turning to the merits of the appeals it seems clear that the Court below has overruled the contentions of the appellants without any investigation as regards questions of fact involved in this case,

13. The appellants had challenged the legality of attachment before judgment on the basis of which the validity of sale in favour of the appellants was assailed by the respondent. They had also pleaded knowledge and consent on the part of respondent to the sale of the house by the judgment-debtor in their favour. The Court below assumed, without investigation or any opportunity to the appellants to establish to the contrary, that there was attachment complying with all the legal formalities therefor. It further assumed similarly that question of knowledge and consent of the respondent was irrelevant under the circumstances of the case. There was no lawful basis for such assumptions.

14. Mr. Chafekar, who appears for the respondent, too could give no satisfactory explanation for the said assumptions on the part of the lower court.

15. The order passed by the Court below holding the sale in favour of the appellants as being void under Section 64 C. P. C., and directing delivery of possession of the property to the respondent is unsustainable and is therefore set aside and the case is sent back to the Court below who shall afford opportunity to the parties to lead evidence upon points material in the present controversy in light of what is said above and to dispose of the case according to law.

16. The appellants are entitled to costs of these appeals from the respondents.


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