1. This is a special appeal under Section 18 of the Rajas-than High Court Ordinance against the judgment and decree of the learned single Judge of this Court dated 9th April, 1965.
2. The relevant facts are these--The appellant obtained a money decree against an evacuee, Sahibzada Abdul Qaddus. The Assistant Custodian Evacuee Property had been impleaded as a defendant in the suit. The trial court dismissed the suit against him and no appeal was preferred against the decree. In execution of the decree a house which formerly belonged to Sahibzada Abdul Qaddus was attached. The Assistant Custodian filed an objection purporting to be under Section 47, Civil P. C. in which it was stated that the house had vested in the Custodian and was not liable to attachment and sale in execution of the decree under Section 17 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the Act'). It was also stated that the house had since vested in the Union as it was acquired under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'Displaced Persons Act'), and formed part of the compensation pool. The objection was dismissed for default on 10-9-1958. An application for setting aside the dismissal was moved. That was also dismissed for default. The property was sold for Rs. 3,100/- in favour of Gangaram and the sale was confirmed on 28-11-1960. A sum of Rs. 1,727/1/0 was paid to the decree-holder on 1-12-1960 in respect of his claim under the decree. On 21-12-1960 a warrant for delivery of possession was issued in favour of the auction-purchaser Gangaram. The Assistant Custodian then moved another application on 14-2-1961 purporting to be under Sections 47 and 151, Civil P. C. in which the objection raised in the earlier application dated 14-4-1958 was reiterated. On this application, the execution court set aside the sale on the ground that it was void under Section 17 of the Act and ordered the appellant to refund the sum of Rs. 1,727/1/0. This order was confirmed on appeal by the District Judge.
3. The decree-holder's second appeal was dismissed by the learned single Judge but leave to appeal was granted and this special appeal has been filed in pursuance of the leave granted by the learned single Judge. The learned single Judge held that the sale of the property was void, both under Section 17 of the Act as well as under Section 15 of the Displaced Persons Act and it was open to the execution court on an application under Section 151, Civil P. C. to declare at any time that the sale was void and to order the refund of money paid to the decree-holder in pursuance of the void sale.
4. The learned counsel for the appellant could not and did not assail the conclusion of the learned single Judge that the sale was void. He, however, strongly contended that the learned single Judge was not justified in directing the decree-holder to refund the amount to the purchaser. According to him, the purchaser should have been left to the remedy of filing a regular suit for obtaining the refund of the amount from the decree-holder. In support of the submission, he relied upon a Bench decision of this Court in Thakar Lal v. Nathulal, ILR (1964) 14 Raj 333 = (AIR 1964 Raj 140). We have gone through the case cited by the appellant's counsel and are of opinion that the principle of the case cannot be invoked in the facts and the circumstances of the present case. The Division Bench was dealing with the case where a sale in favour of an auction purchaser was set aside on a suit by a person claiming that the judgment-debtor had no saleable interest.
Under the evacuee law the position, however, is different. The law prohibits the sale of an execute property and the sale of such property is nullity in the eyes of law. It was in this view of the law that the application of the Assistant Custodian was allowed and the sale was declared null and void. Such a declaration cannot, be equated to a setting aside of sale in a suit based on the grounds of absence of any saleable interest of the judgment-debtor. In this background of basic differences in the two situations, the principle laid down in ILR (1964) 14 Raj 333 = (AIR 1964 Raj 140) cannot be extended by way of analogy to the present case, and on the principles of equitable doctrine of restitution the auction purchaser is entitled to the refund of the amount from the decree holder on the sale being declared nullity without being compelled to file a suit.
5. There is no force in this appeal. It is, therefore, dismissed. There will be no order as to costs.