T.S. Krishnamoorthy Iyer, J.
1. The decree-holder is the appellant and the appeal is filed against the order of the appellate court dismissing the execution petition 733 of 1960 filed by the decree-holder on 9-12-1960.
2. in execution of the decree, the right of the second defendant in 20 cents of land was sold in court auction on 14-12-1956 in full satisfaction of the decree debt. The sale was confirmed on 6-7-1957. When the decree-holder auction purchaser applied for delivery of property, he was obstructed from taking delivery of the property by a stranger to the decree. The application filed by the auction purchaser for delivery of property after removing the obstruction was dismissed.
3. Execution Petition 733 of 1960 was filed by the decree-holder on 9-12-1960 on the ground that the court sale became infructuous because of the dismissal of the application filed by him for delivery of properly after removing the obstruction. The execution court allowed the decree-holder to take further steps on the execution petition on the ground that the decree revived since he did not get possession of the property purchased in court auction. The appellate Judge dismissed the execution petition as he was of the view that the decree did not revive as the decree-holder did not get the court sale which took place in satisfaction of the decree amount, set aside.
4. It was contended by the advocate for the decree-holder that since the decrceholder was not able to get delivery of property in execution of the decree, the court, sale became infructuous and therefore the decree revived to be executed and in support of his contention he relied on the decision in Madhavan Namboori v. Narayanan Namboori, (1934)24 Trav LJ 1166. The decision no doubt supports the proposition contended for by the learned advocate for the appellant. But this decision was dissented from in Padmanabba Pillai v. Lekshmanan Pillai. (1941) 31 Trav LJ I where their Lordships of the Travancore High Court following an earlier decision of the same court in Kuruvila Thomman v. Pierce Leslie Co. Ltd.. (1936) 26 Trav LJ 927 observed at page 4:
'An execution sale is neither void nor anabsolute nullity as between the decree-holderand the judgment-debtor, merely because thejudgment-debtor had no saleable interest inthe property sold. The court has authority andjurisdiction to attach and sell in execution anyproperty which the decree-holder puts forward as the properly of his judgment-debtor.The jurisdiction of the executing court to sellis complete, notwithstanding the fact that theproperly does not really belong to the judgment-debtor. The reason for this is that a courtin selling property in execution does not givea guarantee that the properly sold is the property of the judgment-debtor. It has beenheld both here and elsewhere that a courtsale carries no guarantee that the properlysold belongs to the judgment-debtor and that the auction-purchaser takes the risk and bearsthe loss if it turns out later that the propertydoes not belong to the judgment-debtor. Theprinciple of caveat emptor applies in suchcases.'
The Travancore-Cochin High Court in Varghese v. Varghese, 1LR (1954) Trav-Co 1258 followed the decision in (1941) 31 Trav LJ 1 and held that
'when once a sale has taken place the decree-holder auction purchaser is not entitled to execute the decree again on the ground that the judgment-debtor had no saleable Interest in the properly sold unless he gets the sale set aside in the manner prescribed by the Code of Civil Procedure.'
Order 21, Rule 91. C.P.C. is to the following effect:
'The purchaser at any such sale in execution of a decree may apply to the court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.'
The general principle is that a court sale carries with it no guarantee that the property sold is the property of the judgment-debtor. The auction-purchaser lakes the risk and bears the loss If it is found that the properly sold does not belong to the judgment-debtor. A court sale of the property in which the judgment-debtor had no saleable interest is therefore not void so far as the purchaser is concerned. Order 21. Rule 91. C. P. C. In an exception to the general principle in that it enables an auction-purchaser to have the court sale of property in which the judgment-debtor had no saleable interest set aside by an application filed under the rule. In this connection, reference may be made to the observations in Muthukumarasamia Pillai v. Muthusami Thevan, AIR 1927 Mad 394 at p. 395:
'If the contention of the appellant were accepted, it would mean that a Court in selling property in execution gives a guarantee that the properly sold is the property of the judgment-debtor, which is opposed to one of the fundamental principles of court sale. It has been invariably laid down in this country and elsewhere that a Court sale carries no guarantee that the property is the property of the judgment-debtor, and that the auction-purchaser takes the risk and bears the loss if it is subsequently discovered not to be the property of the judgment-debtor. There is, therefore, no warrant for the proposition that a sale by the Court of property which subsequently turns out not to belong to the judgment-debtor, is void, and, in this view, it makes no difference that the auction-purchaser is the decree-holder. The principle of caveat emptor will apply to the decree-holder auction-purchaser equally as to any other auction purchaser.
The appellant cites a ruling in Radha Kishun Lal v. Kashi Lal, ILR 2 Pal. 829 : (AIR 1924 Pat 273), for the proposition that a decree-holder is in a more favourable position than a stranger auction purchaser. But, If the decree is satisfied the decree-holder is no longer in the position of a decree-holder, his status has altered into that of auction-purchaser. Suppose, for example, that he had to pay more for the property than the decree amount. He is not the decree-holder in respect of that sum and in the matter of any claim to refund of that amount on the sale being set aside he is only in the position of auction-purchaser and could not under the present law recover It unless he had applied within thirty days of the sale. We are not able to accept the distinction drawn in ILR 2 Pal 829 : (AIR 1924 Pat 278). In fact, it is one of the decree-holder's duties to see that the property sold was the property of his judgment-debtor, and if he makes mistake he must take the consequence. The law does not permit him to treat his sale as a void sale and ignore it and put in a further execution application as if it had never taken place. It cannot be reasonably contended that the question whether a Court has jurisdiction or not to sell the property rests on the problematic decision of a problematic claim, and that a Court which allows a claim to properly sold thereby declares its own lack of jurisdiction in the proceedings of attachment and sale which led up to the claim proceeding. The logical result of that would be that the Court had no jurisdiction to decide the claim and therefore no jurisdiction to decide that it had no jurisdiction, a topsy-turvy result.
It follows then that, before appellant can again apply to execute the decree, which has been recorded as satisfied by the previous Court sale, he must have the sale set aside the ground for the application being natural!: that his judgment-debtor had no saleable interest in the property sold. To such an application Order 21, Rule 91 in terms applies and it must be put in within 30 days of the sale.'
A Full Bench of the Patna High Court in Surendra Kumar Singh v. Srichand Mahata, AIR 1936 Pat 97 at p. 100 (FB) laid down the following two propositions:
'(a) A sale of immovable properly in which the judgment-debtor has no interest at the date of the sale is not a nullity in the sense of being of beyond the jurisdiction of the executing Court or void as between the judgment-debtor and the decree-bolder or auction-purchaser, and (b) the decree-holder if be purchases the properly, cannot successfully maintain an application for the revival of the execution proceedings on the ground that the sale has not in fact satisfied bis decree to the extent of the sale-price, unless be has the sale set aside by applying under Order 21, Rule 91.' A case on identical facts to the one before me came up for decision before the Palna High Court when a Division Bench of that Court In Benode Sahu v. Dilwar Jama Khan, AIR 1953 Pat 9 observed thus:
'In the case before us, there was no adjudication of title so as to effect the sale which was held on the 13th of August, 1944. All that the executing court decided in the proceeding under Order XXI, Rule 100, Code of Civil Procedure was that the applicant of that proceeding was in possession on her own account; but question of the validity of the sale or the title of the judgment-debtor was not finally decided. Under Rule 103 of Order XXI It was open to the appellant to bring a suit for an adjudication on the question of title. The appellant did not do so, but remained content with the adverse decision given on the question of possession in the proceeding under Order XXI, Rule 100, Code of Civil Procedure. In the two cases on which Mr. Chatterji has relied, there was on adjudication of title which affected the validity of the sale. As was pointed out in 'Radha Kishun Lal's case, ILR 2 Pat 829: (AIR 1924 Pat 273) the effect of the decree in favour of the third party a decree which bound both the decree-holder and the judgment-debtor was to set aside the sale, and no formal order to that effect was required. In 'Bibi Umatul Rasul's case', ILR 20 Pat. 261: (AIR 1941 Pat 405) also the decree affected the very foundation of the sale. In the case before us there is no adjudication such as to effect the validity of the sale. The present case approached more closely the decision in ILR 15 Pat 308 :(AIR 1936 Pat. 97) (FB) where Radha Kishun Lal's case, ILR 2 Pat 829: (AIR 1924 Pat 273), was distinguished on the ground that in the case before their Lordships of the Full Bench, there was no adjudication which could be taken to have the effect of setting the sale aside. That distinction is also present in the case before us. As I have already pointed out, there is no adjudication in the present case, which has the effect of setting the sale aside. This, in my opinion, is the short answer to the contention of Mr. Chatterji.
It is unnecessary to consider certain other wider questions which have been canvassed before us, namely, whether there is an analogy between proceedings such as those under Order XXI, Rule 58. Code of Civil Procedure, which take place before the sale, and proceedings such as those under Order XXI. Rule 100, Code of Civil Procedure, which lake place after the sale. It is also unnecessary to consider in this case the rights of the auction purchaser with regard to a claim for refund of the money which was paid by him. The Principal question for decision before us is whether the appellant can levy a second execution, ignoring altogether the sale which was held on the 13th of August 1944. and on the confirmation of which the execution case was dismissed on full satisfaction. The answer to this question is that the appellant not having taken any steps to set aside the sale within time, under the provisions of Order XXI, Rule 91, Code of Civil Procedure, the sale has become absolute under the provisions of Order XXI, Rule 92. Code of Civil Procedure. There has been no such adjudication either in the execution proceeding itself or in a collateral proceeding which can he said to have the effect of setting aside the sale which was held on the 13th of August, 1944'.
5. It therefore follows that the execution petition is not maintainable and the view taken by the learned Subordinate Judge is correct. In the result, the Second Appeal fails and is dismissed but without costs as there was no appearance for the respondent.