1. This is an appeal from an order of the learned Subordinate Judge of Durbhanga allowing an objection which had been preferred by Darson Grope and Babu Anuplal, two of the present respondents, to the sale of a share in Mongah Kuar Ranjit, pergannah Chakmani, belonging to Babu. Dinkar Prasad and others (judgment-debtors respondents) in execution of a money-decree which had been obtained against those judgment-debtors by the transferor of Mohadeo Lal, the present appellant.
2. It appears that Mahadeo Lal is the transferee of a money-decree which had been obtained against Dinkar Prasad and others and that he, on the 29th May 1906, attached the property now in question in the execution of hat decree.
3. On the 17th May 1908, a mortgage-decree was passed against the same judgment-debtors in favour of Nund Lal Singh. In execution of that decree, the property in question in this appeal was attached and, on the 17th June 1908, was sold by auction and purchased by petitioner No. 2, Anuplal, in the name of petitioner No. 1, Darson Gope, two of the present respondents.
4. When Mohadeo Lal was about to have the same property sold in execution of his decree, the petitioners, (who are two of the respondents before us), on the 26th April 1909, filed a petition of objection asking that the Court would exempt the property advertised from sale. The attention of the Judge was drawn at the time by the officer of the Court to the fact that it was doubtful under what section of the Code such an application could be made, but the Judge expressed no opinion on the point. Mohadeo Lal put in a counter-petition alleging that the purchase by Anuplal in execution of the mortgage decree was fraudulent and collusive.
5. It may be noted that Anuplal is the brother of Dinkar Prasad, Mohadeo Lal being their first cousin.
6. The two petitions came on for hearing before the learned Subordinate Judge and on the 15th May 1909, he passed the order, the subject of this appeal.
7. A preliminary objection was taken that no appeal lies. It is not easy to see under what section of the Code the learned Subordinate Judge thought he was proceeding. If the proceeding be considered as a claim under Order XXI, Rule 58 (Section 278, Civil Procedure Code, 1882), it is obvious that no appeal would lie and the order of the learned Subordinate Judge would be final, subject to the party against whom it was made instituting a suit to establish his right. The matter cannot, in our opinion, be regarded as such a claim or objection, inasmuch as the purchase, by which the respondents claim to have acquired their tittle to the property, was made long after the attachment of the property by Mohadeo Lal. It may be pointed out that the Court was in error in allowing (if it did allow) the decree-holder in the second execution case to receive the proceeds of sale without reference to the attachment by Mohadeo Lal which was then subsisting and long prior in date.
8. Nor can the application to regarded as one under Order XXI, Rule 89, because the sale had not actually taken place.
9. It appears to us that no provision has been made in the Civil Procedure Code for such an application as the present and that the order of the learned Subordinate Judge must be regarded as one made without jurisdiction.
10. Some attempt was made to argue that the matter fell within the purview of Section 47 (Section 244 of Civil Procedure Code, 1882); but we are unable to hold that the present respondents-petitioners can be said to be representatives of the judgment-debtors for the purposes of that section. They are, in fact, setting up an antagonistic title based on their purchase.
11. As we hold that the order of the learned Subordinate Judge was made without jurisdiction, we can deal with it in our revisional jurisdiction, and, in our opinion, the only course which we can adopt is to set aside the order of the Subordinate Judge as passed without jurisdiction and to direct that the sale in execution of (he decree passed in favour of Mohadeo Lal do proceed.
12. We refrain from expressing any opinion on the question which has been raised before us, namely, whether the sale of the property in execution of the mortgage decree obtained by Nund Lal Singh and its purchase by Anuplal and Darson Gope, two of the present respondents, was or was not fraudulent or collusive. That question must be decided by a competent Court, should proceedings be taken by either of the parties before us after the proceedings in execution of the decree of Mohadeo Lal have been concluded.
13. The result, therefore, is that we set aside the order of the Subordinate Judge, dated the 15th May 1909, as passed without jurisdiction and direct that the sale in execution of the decree of Mohadeo Lal do proceed. We direct that Anuplal and Darson Gope do pay the costs of Mohadeo Lal in this Court and in the lower Court. We fix the hearing fee at three gold mohurs.