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Dayashanker and anr. Vs. Khubchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 470 of 1970
Judge
Reported inAIR1973Raj304; 1973()WLN369
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 92 and 95
AppellantDayashanker and anr.
RespondentKhubchand
Appellant Advocate Kewal Chand, Adv.
Respondent Advocate S.L. Mardia, Adv.
DispositionAppeal dismissed
Cases ReferredPhoolchand v. Badri Prasad
Excerpt:
.....code - section 47 & order 21 rule 95 01--no application made under order 21 rule 95--held, decree holder's right to get possession by a regular suit is not lost.;the question of delivery of possession of a property purchased by the decree-holder in execution is not a question relating to execution, discharge or satisfaction of the decree. consequently the present suit for possession of the property cannot be held to be barred on account of the provisions of section 47 cpc. it is further clear that by merely not making an application under order xxi, rule 95 cpc the decree-holder auction purchaser would not lose his right of getting possession of the property by a regular suit.;(b) civil procedure code - section 47 & order 21 rule 95--irregularities not sufficient ground to..........defendant situated in village vasa, district sirohi was attached and sold. the final bid of the decree-holder for rs. 581/- received on 17-7-1958 was accepted by the executing court. the sale was confirmed on 30-8-1958 and the sale certificate ex. 1 was issued on 20-1-1960. on 7-1-1967 the plaintiff filed the present suit for possession of the property sold to him by the sale certificate dated 20-1-1960. the suit was resisted by the defendant-appellants (judgment-debtors) on the ground that it was not maintainable as the auction purchaser had failed to make an application under order xxi, rule 95, civil procedure code. it was also pleaded that since no notice had been given to the judgment-debtor for settling the conditions of sale under order xxi, rule 66, civil procedure code and.....
Judgment:

C.M. Lodha, J.

1. This is a defendants' second appeal arising out of a suit for possession of a house sold in execution of a money decree obtained by the plaintiff-respondent auction purchaser. The decree was obtained on 31-8-1945 and in the course of the execution of the decree the house in question belonging to the judgment-debtor defendant situated in village Vasa, District Sirohi was attached and sold. The final bid of the decree-holder for Rs. 581/- received on 17-7-1958 was accepted by the Executing Court. The sale was confirmed on 30-8-1958 and the sale certificate Ex. 1 was issued on 20-1-1960. On 7-1-1967 the plaintiff filed the present suit for possession of the property sold to him by the sale certificate dated 20-1-1960. The suit was resisted by the defendant-appellants (judgment-debtors) on the ground that it was not maintainable as the auction purchaser had failed to make an application under Order XXI, Rule 95, Civil Procedure Code. It was also pleaded that since no notice had been given to the Judgment-debtor for settling the conditions of sale under Order XXI, Rule 66, Civil Procedure Code and the sale had actually not been held on 22nd and 23rd July, 1958 as ordered by the Executing Court, the sale was null and void.

2. After recording the evidence produced by the parties the trial Court dismissed the suit, but on appeal by the plaintiffs the learned Additional Civil Judge, Pali decreed the suit. Aggrieved by the judgment and decree of the learned Additional Civil Judge, Pali the defendant has come in appeal to this Court.

3. Two points have been urged in support of the appeal. It has been argued in the first instance that admittedly the plaintiff had not made an application under Order XXI, Rule 95, C. P. C., for putting him in possession of the property and therefore the present suit is barred, as the question of delivery of possession in such circumstances would be a question relating to execution of the decree between the parties to the suit as envisaged by Section 47 of the Civil Procedure Code. There is no doubt a conflict of judicial opinion on this point. The High Courts of Madras, Calcutta, Kerala, Madhya Pradesh and Nagpur in Kandaswami v. Kuppa Moopan, AIR 1920 Mad 479, Kailash v. Gopal, AIR 1926 Cal 798 (FB), State v. Lekshmi Ammal, AIR 1958 Ker 309, Hariprasad v. State of M. P., AIR 1959 Madh Pra 343 (FB) and Anant v. Brijmohan, AIR 1956 Nag 93 have taken the view that a decree-holder purchaser cannot maintain a separate suit for possession of the property purchased by him in court sale. The HighCourts of Allahabad, Bombay, Patna, Lahore, and Rangoon in Mst. Suraj Dei v. Mst. Gulab Dei, AIR 1955 All 49, Savalaram v. Viswanath, AIR 1945 Bom 386, Tribeni v. Ramasray, AIR 1931 Pat 241 (FB), Ram Singh v. Abdullah Habib Ullah, AIR 1944 Lah 402 (FB) and Ko Talk On v. N.S.A.R. Firm, AIR 1936 Rang 298 have taken a contrary view, but a learned Single Judge of this Court in Mohan Lal v. Bhagwan Chand, 1965 Raj LW 474 after referring to certain observations of their Lordships of the Privy Council in Mahabir Pershad Singh v. Macnaghten, (1889) ILR 16 Cal 682 held that the view taken by the learned Judges of the Allahabad, Bombay, Patna, Lahore and Rangoon was preferable. Learned counsel for the appellants is unable to point out any subsequent judgment of this Court taking a contrary view or any judgment of the Supreme Court on the point. I do not see any sufficient reason for taking a different view of the matter from the one taken in Mohanlal v. Bhagwan Chand, 1965 Raj LW 474 wherein it has been held that the question of delivery of possession of a property purchased by the decree-holder in execution is not a question relating to execution, discharge or satisfaction of the decree. Consequently the present suit for possession of the property cannot be held to be barred on account of the provisions of Section 47, Civil Procedure Code. It is further clear that by merely not making an application under Order XXI, Rule 95, Civil Procedure Code the decree-holder auction purchaser would not lose his right of getting possession of the property by a regular suit. I am, therefore, unable to accept the first point urged by the learned counsel for the appellant.

4. Coming to the next point it has been held by a Full Bench of this Court in Phoolchand v. Badri Prasad, AIR 1953 Raj 51 (FB) that a sale can be avoided after confirmation by a suit or by an application under Section 47 only on the ground of fraud. In the present case the judgment-debtor has completely failed to prove any fraud on the part of the decree-holder so as to vitiate the sale. But the sale is sought to be avoided on the ground that the judgment-debtor did not get notice under Order XXI, Rule 26, Civil P. C. It may be pointed out that in the certified copy of the notice Ex. A-l it has been mentioned that the judgment-debtor refused to accept the notice. This contention has, therefore, no force. Another complaint in this connection is that the Sale-Ameen did not hold auction on 22nd and 23rd July, 1958 as directed by the Court. It may be noted that on 19-7-1958 when the papers were put before the Executing Court, the Court was of the view that the sale should be continued for some time as the last bid given by the decree-holder was not adequate. On 22-7-1958 no bidder turned up at the spot and on 23-7-1958, it is said, that the Sale-Ameen did not holdany auction yet, when the papers were again put up before the Executing Court on 30-8-58 the Court confirmed the sale in favour of the decree-holder. There is nothing on the record to show that the decree-holder had committed any fraud on the court in bringing about the order of confirmation of sale nor is there any thing on the record to show that the rights of the judgment-debtor were in any way prejudicially affected on account of the failure of the Sale-Ameen to continue the auction on 23rd July, 1958 specially when no bidder turned up on 22-7-1958. But at the top of it all, according to the view taken by the Full Bench of this Court such irregularities even if they are held to be material do not constitute a sufficient ground for avoiding the sale, unless fraud is proved.

5. No other point was pressed.

6. This appeal is without force and Is hereby dismissed with costs.

7. Learned counsel for the appellants prays for leave to appeal to Division Bench. Leave is refused.


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