1. The decree-holder is the appellant. He obtained a decree on 12th December 1936, against Kadha Prasad Bose, husband of Sashimukhi, the present respondent. The first execution case was No. 823 of 1937. The disputed property was attached on 19th December 1937 along with certain other items. After that attachment, on 8th March 1938, Sri Bhagabat Gosain, through marfatdar, Sashimukhi, advanced a claim, under Order 21, Rule 58, Civil P.C. (claim Case No. 36 of 1938). As the date for sale had been fixed for 19th March 1938, the claim case was dismissed, as filed too late. At this stage, the execution case was transferred to the Court of the Subordinate Judge of Cuttack, on 19th March 1938, where it was numbered as Execution Case No. 88/823. On 16th August 1938, Radha Prasad Bose died. There was no substitution of his legal representative, namely, Sashimukhi, before the sale was held. The decree-holder became the purchaser in the execution sale on 17th August 1938. Sashimukhi put in a-petition for setting aside the sale on the ground that the sale had been held in a proceeding against a dead person, namely, her husband. Eventually the sale was set aside. It is represented to us by Mr. Mukherji that the attachment subsisted and he had to proceed from the stage of publication of sale. While he was proceeding in this manner, an objection to sale was filed on 16th September 1938 by Sashimukhi under Section 47, Civil P.C. On 1st September 1938 the second claim case, being No. 61 of 1939 by Bhagabat Gosain through Sashimukhi, was-advanced but was disallowed on 19th September 1939. We do not know anything as to how the execution proceedings proceeded beyond this stage.
2. In the meantime, in execution of another decree (Execution case No. 191/41) that very property was sold and the present appellant became the auction-purchaser on 16th July 1941. He had applied in this execution for rateable distribution of the sale proceeds. His right by purchase was attacked in a suit by Bhagabat Gosain, through Sashimukhi and another as marfatdars. In this suit the present appellant, as auction purchaser, and Sashimukhi, in her personal capacity, were impleaded. The suit ended in a decree in favour of Bhagabat Gosain. The subject-matter of the suit, however, is pending in a second appeal from its decree, in this Court. Till now the appellant has failed in all Courts.
3. It is stated that on 14th July 1948, Execution Case No. 88/828 was dismissed with an order-directing the attachment to subsist. I had my doubts with regard to the correctness of the facts stated that go to establish that the Execution case No. 88/823 had been kept pending up till 14th July 1943. Mr. Mukherji insists that it is so. I looked to the petition for execution in Execution case No. 99 of 1944 of the self-same decree. In column 6 of that petition, I find that three other execution cases of the years 1939, 1940 and 1941 have intervened. I do not understand how could, notwithstanding the filing of fresh execution cases, the earlier case No. 88/823 should continue to remain pending.
4. In this last execution No. 99/44 again another petition under Section 47, Civil P.C. was filed by Sashimukhi to the effect that she has no sale, able interest in the property proposed to be sold. This was registered as Misc. case No. 89 of 1944. In this case, both the Courts below have come to the conclusion that the properties attached did not belong to the judgment-debtor, Sashimukhi, and hence could not be sold. The second appeal is directed against these orders.
5. The points, raised by Mr. Mukherji, are to the effect: (i) that it bad been decided in a claim case started at the instance of Sri Bhagabat Gosain that the latter had no right to the property and that as he had not brought a suit within one year of the said order under Order 21, Rule 63, Civil P.C. the question of Bhagabat Gosain's title as between decree-holder and him-self has become conclusive, and (i) under these circumstances, the objection of Sashimukhi that she had no interest in the attached property and it was not liable to be sold did not lie under Section 47, Civil P.C.
6. The last contention, if acceded to, will oust the present appellant out of this appeal, because the order will not amount to one under Section 47 and will not be appealable either to the first appellate Court or to the second. He then wants to fall back upon the usual remedy of requesting the Court to treat this appeal as a civil revision. If it is considered to be a civil revision, he must have to establish that the order, complained against, suffers from either lack of jurisdiction or some illegality or irregularity of a material character in exercise of jurisdiction. I shall come to this point later on.
7. With regard to the first contention it is very clear from the statement of facts already stated above that there are two conclusive decisions of binding character as between the present decree-holder and Sri Bhagabat Gosain. The suit out of which the second appeal has arisen was instituted, as I have already stated, on 16th January 1942. If it is the contention of Mr. Mukherji, the earned Counsel for the appellant, that the first order in the claim case was conclusive, it was for him to plead that as a defence in the subsequently filed suit. If established, it should have been a complete bar to the maintainability of that suit. It may also be assumed that some such plea might have as well been raised. If in that case that plea has been negatived, it is not open to Mr. Mukherji to take a stand again upon the conclusive character. the order in the claim case. That the order in the claim case is conclusive is a question of fact as well as of law. Mr. Mukherji had to concede that there may arise circumstances in which the unsuccessful claimant might not have to institute a suit as contemplated under Order 21, Rule 63, Civil P.C. Had that been raised in the suit, it would be open to Bhagabat Gosain to plead those circumstances. In that event the decision in that title suit by which the present appellant is bound shall be taken to have been arrived at after consideration of those circum stances and shall be conclusive. It has to be considered that the conclusiveness of the order in the claim case has been pleaded but negatived. It is wrong, therefore, to contend independently of the decree of that suit, that the order in the claim case is conclusive as to title of Bhagabat Gosain.
8. In consideration of the provisions of Section 60, Order 21, Rule 11 and Rules. 13 and 14, Civil P.C. it is manifestly clear that the Court also has a duty to perform in putting the property to attachment and sale, namely, to be satisfied that it belongs to the judgment-debtor. This is particularly so, as it is a settled view of law that any sale held of a property not belonging to the judgment-debtor is void. My learned brother has brought to my notice a decision of the Privy Council in the case of Eedar Nath Goenka v. Bam Narayan Lal . The passage, that contains the principle, reads:
The bid-sheet A.A. shows what was sold was the property exclusively belonging to the judgment-debtor as detailed below viz., Mahauta Mahabir Das. At the time of this sale the title to the property sold was not in that judgment-debtor but in the plaintiff, and their Lordships agree with the decision in India in Jwala Sahai v. Masait Khan 26 All. 346 that the sale was a nullity and that the present suit is not barred under Article 12, Limitation Act.' No Court is bound to proceed with sale at the bidding of the decree-holder when, either through proper or improper channel, it comes to know that the property sought to be attached and sold does not belong to the judgment-debtor. The second appeal considered as a civil revision must fail.9. Before closing, I shall point out that any decision in a claim case may bar certain remedy, but it has not the efficacy of extinguishing the claimant's title. However, the decision in the ' title suit was a binding one at that stage and Sashimukhi, depending on that, was entitled to bring to the notice of the Court that it was not her property as finally decided between the parties. The proper remedy for the decree-holder should have been to have the execution case stayed till the litigation started with the title suit came to end. Notwithstanding that decision against him, he proceeded to sell the property, contrary to it, as belonging to Sashimukhi.
10. In the result, the appeal, as such, or treated as a civil revision, is dismissed with costs. Hearing fee assessed at one gold mohur.
11. I am bound to acknowledge with thanks the services of Mr. B.K. Pal who rendered valuable assistance to us, appearing as he did amicus curiae.