K.J. Sen Gupta, J.
1. This application for leave to appeal to the Supreme Court under Article 133 of the Constitution is directed against the judgment end order dated 4-12-1973 passed by this Court in F. M. A. No. 624 of 1968, affirming the order passed in Misc. Case No. 39 of 1968. by Sri M. M. Haldar, Subordinate Judge, 3rd Court at Alipore, 24-Parganas.
2. In order to appreciate the point at issue, the following facts need be stated:--
That the petitioner is the judgment-debtor No. 2 in the execution case. His father Raja Abhoy Narayan Deb of Assam died in 1941. He. along with other properties left the premises No. 117-A, Rash Behari Avenue, situated on an area of about 1 bigha 6 cottah. It is a three storied building comprising 32 spacious rooms with two out houses.
That on or about 15-9-1949, the petitioner and others mortgaged their 2/3 share in the said property to raise a loan of Rs. 27,000/-. The mortgagors were:-- (a) the present petitioner (b) Kumar Surjyendra Narayan Deb (c) Rani Suhasini Debi (d) Nilima Debi: on the death of Rani Suhasini Debi -- her heirs were substituted.
The mortgagee was Prakasini Biswas, the predecessor-in-interest of Opposite Parties Nos. 1 (a) to 5.
That on 3-3-1961 the mortgagee brought the T. S. No. 17 of 1961, in 3rd Court of Subordinate Judge at Alipore to enforce the above mortgage and got a preliminary decree on July 25, 1962. In the preliminary decree it was directed that 2/3rd share of the decretal dues would be payable to the plaintiff--present Opposite Parties Nos. 1 (a) to 1 (f) and 2, 3 and 4 and the balance l/3rd share to be payable to the plaintiff--present Opposite Party No. 5.
3. The Opposite Party No. 8 Kumar Surjyendra Narayan Deb filed F. A. No. 962 of 1964, in this Court against the said preliminary decree on 18th December. 1962. The petitioner's attempt to get stay of further proceeding failed. As a result the final decree was passed on 6-3-1963 though F. A. No. 902 of 1964 was pending. It may however, be noted that the appeal against the preliminary decree was filed on 18-12-1962 and the same was registered as F. A. No. 902 in the year 1964.
4. After the final decree which was passed on 6-3-1963 the opposite partydecree-holder Nos. 1 series and 2, 3 and 4 started Title Execution Case No. 11 of 1963, for realisation of their 2/3rd share of the dues under the decree whereas opposite party decree-holder No. 5 also started another Title Execution Case No. 13 of 1963 for realisation of his l/3rd share in the mortgage decree. In these execution cases, prayer was made for sale of the mortgage properties. The executing court consolidated both the execution cases and proceeded with the same.
5. The terms of sale proclamation under Order 21. Rule 66 of the Code of Civil Procedure were settled by the Executing Court. The decree-holder put the valuation of the property to be sold at a sum of Rs. 75,000/- whereas according to the judgment-debtor the said property was to be valued at Rs. 5 lacs. The sale proclamation was, however, issued with both the valuation asserted by the respective parties.
6. This petitoner filed an objection under Section 47 of the Code of Civil Procedure on 4-3-1968 and asserted that without assessment of proper valuation of the property in question, the same should not be sold. He further asserted therein that the value of the property has further gone high and at the relevant time it could not be less than 6 lacs. The said objection was registered in Misc. Case No. 39 of 1968.
7. In the meantime the property was sold on 15th March. 1968, and the same was purchased by the third party auction-purchaser the Opposite Parties Nos. 6 and 7.
8. The learned Subordinate Judge by his order dated 18th May, 1968, dismissed the Misc. Case No. 39 of 1968. Against that order F. M. A. No. 624 of 1968 was filed. We have already mentioned that Opposite Party No. 8, one of the judgment-debtors preferred F. A. No. 902 of 1964 against the preliminary decree passed on 25-7-1962. The said appeal was pending when the final decree was passed on 6-3-1963 and the sale held on 15-3-1968.
9. The real difficulty and complication was started by the compromise effected between the parties in F. A. No. 902 of 1964. The said compromise was effected on 13-12-1971 and the impugned preliminary decree was set aside and in its stead a new preliminary decree was passed.
10. Long after that, F. M. A. 624 of 1968 came before this Court for hearing. The said appeal has been dismissed and the order of the learned Subordinate Judge was upheld by this Court on 4-12-1973. Against the said order the petitioner wants to prefer an appeal to the Supreme Court and as such leave to prefer such an appeal has been prayed for.
11. Mr. Chakraborty appearing for the petitioner has challenged the said order as passed by this Court on 4-12-1973 mainly on the following grounds:
(1) That the Executing Court ought to have taken action in accordance with the provisions as laid down in Section 35 of the Bengal Money Lenders Act; the sale proclamation with two valuations as given by the decree-holders and the judgment-debtor was bad in law -- as such the sale was liable to be set aside.
(2) That a new preliminary decree was passed on 13-12-1971 when the appeal F. A. No. 902 of 1964 was decreed on compromise; the effect of that decree was to set aside the original preliminary decree superseding the final decree based on that decree.
(3) That the above question is to be considered at the time of disposal of the objection under Section 47 of the Code of Civil Procedure. The sale in question took place after the objection under Section 47 was preferred and during the pendency of F. A. No. 902 of 1964.
(4) It has been submitted that after the amendment in the Explanation of Section 47 of the Code of Civil Procedure the auction-purchasers are also deemed to be the parties in the suit. In that context it has got to be considered whether the decisions in long series of cases clustering round Section 47 of the Code of Civil Procedure making distinction between a decree-holder purchaser end a stranger purchaser still hold good.
12. According to Mr. Chakraborty, those points involve a substantial question of law of general importance and the question, was to be decided by the Supreme Court.
13. Except the contention of Mr. Chakraborty regarding the effect of amendment of Section 47 of the Code of Civil Procedure, all other points have been decided by this Court with reference to the decision of the Supreme Court, which will appear from the judgment of the appeal in question. So those points do not come for our consideration while dealing with the question of granting leave to appeal in the Supreme Court. Only question which may be considered is the effect of the amendment in Section 47 of the Code of Civil Procedure. That is, therefore, the point at issue. Mr. Chakraborty submits that as the final decree is superseded when a preliminary decree is set aside, an auction sale held in execution of the final decree, even though confirmed would fail; that a stranger auction-purchaser in view of the amendment of Section 47 of the Code, would be deemed to be a party to the suit or original proceeding and necessarily be bound by all the legal consequences that would follow from the passing of a new preliminary decree.
14. The question posed in this case is whether after the reversal of a final decree owing to passing of a new preliminary decree validity of a sale held in execution of a valid pre-existing final decree can be attacked under the provision of Section 47 of the Code.
15. Mr. Mitter, learned Advocate for the auction-purchaser contends that Section 47 has no application in such a case. The said view was sought to be supported with reference to the decision in the case of Janak Raj v. Gurdial, reported in : 2SCR77 . Relying on the ratio decidendi of that Supreme Court decision, this Court held that apart from the special peculiarities in that case, the principle or reasons underlying that decision equally apply in this case and as such it was held that the sale held in execution of a valid decree neither automatically falls through nor can it be challenged as invalid by subsequent reversal of the decree after such sale in execution proceeding.
16. The said submissions of Mr. Mitter are no doubt attractive. The decision of the Supreme Court in the above-mentioned case rests on the facts involved in that case. There the question arose whether a sale held in execution of a decree subsequently set aside, should be confirmed. Their Lordships considering all the relevant provisions of the Code of Civil Procedure such as mentioned in Order 21, and Section 65 of the Code, held that there is no provision in the Code whereby the confirmation of a sale can be held up. In that case the question under Section 47 of the Code of Civil Procedure particularly after its amendment, whereby the third party purchaser was brought under its purview was not considered. Their Lordships' observation in that connection is as follows:
'Lastly it was contended that the amendment of Section 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction-purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction-purchaser at a sale in execution of a decree under Section 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion on the facts of this case the sale must be confirmed.'
Their Lordships further observed:--
'Although we have noticed some decisions where the right of the auction-purchaser decree-holder in circumstances similar to the case before us was discussed or the right of a purchaser in regard to a sale held after the setting aside ofthe decree was touched upon, our judgment must not be taken as adjudication upon any of these points'.
17. Mr. Chakraborty refers to the above observations of their Lordships and submits that the question raised in this case under Section 47 of the Code of Civil Procedure was not considered, rather it has been left open to be considered in an appropriate case. Mr. Mitter drew our attention to the provision of Section 144 of the Code and submits that it does not contemplate restitution when third party intervenes. Mr. Chakraborty. on the other hand, submits that Section 144 of the Code is not exhaustive and not the only mode of restitution; the Court in order to do justice between the parties can also exercise their inherent jurisdiction under Section 151 of the Code, even in appropriate case, a petition under Section 47 of the Code may be treated as a plaint and the order passed thereon may be executed as a decree and in its execution the judgment-debtor, if otherwise found entitled to get back possession, may be restored to such a possession in the property in question. These are the matters which require further consideration.
18. In this view of the matter the contention of Mr. Chakraborty, that this case involves a substantial question of law of general importance, and the same should be decided by the Supreme Court, seems to us to have substance.
19. After hearing learned Advocates of both the parties and going through the trend of decisions, we are of the views that the question raised, is of general importance, and it requires a decision of the Supreme Court and we certify accordingly.
20. In the result, this application is allowed and leave to appeal to the Supreme Court under Article 133 of the Constitution is granted but under the circumstances of the case we direct the parties to bear their own, costs.
21. The stay order will, continuetill an appeal is filed before the SupremeCourt or the period for filing the appealexpires, whichever is earlier.