JUDGMENT
Shambhu Prasad Singh, J.
1. This appeal by the judgment-debtor against concurrent orders of the courts below, dismissing his objection finder Section 47 of the C. P. Code, has been referred to Division Bench, as an important question of law whether after the sale is confirmed and complete satisfaction of the execution is recorded in the order sheet, can a fresh execution be levied without getting the sale set aside under the provision of Order XXI Rule 91 of the Code of Civil Procedure if an application under Rule 100 of Order XXI of the Code of Civil Procedure by a third party was allowed and an observation was made directing the decree-holder to file a fresh execution case for recovery of the decretal dues from the judgment-debtor who had also been impleaded as opposite party in the miscellaneous case order XXI Rule 100 of the Code of Civil Procedure, is involved in it. In the case of Benode Sahu v. Jama Khan. AIR 1953 Patna 9, it was held by Das and Ramaswami JJ. (as they then were) that where sale is confirmed and execution case is dismissed as fully satisfied, fresh execution without getting the sale set aside is barred and no fresh execution can be levied, because, an order in a proceeding under Rule 100 of Order XXI of the Code of Civil Procedure was passed in favour of a person in possession.
In the case of Surendra Kumar Singh v. Srichand Nahata a Full Bench decision of this Court reported in ILR 15 Pat 30R = (AIR 1936 Pat 97). it was also held that the decree holder if he purchased the property, cannot successfully maintain an application for the revival of the execution proceedings on the ground that the sale has not, in fact, satisfied his decree to the extent of the sale price unless he gets the sale set aside by applying under Order 21 Rule 91 of the Code of Civil Procedure. In that case, however, there was no application or order under Order 21 Rule 100 of the Code of Civil Procedure A Bench if Travancore-Cochin in the case of Perumal Abraham v. Geevarghese George. AIR 1953 Trav-Co 620 held that if there is an order quashing the sale itself in a proceeding started at the instance of a person in possession of the property sold, on his own account, and the judgment-debtor was a party to such a proceeding fresh execution can be levied even without getting the sale set aside under Order 21 Rule 91 of the Code of Civil Procedure.
Thus, the questions which arise for decision in this appeal and which have been argued by learned counsel for the parties are the following :–
(1) Whether the reasonings for the decision in Perumal Abraham’s case AIR 1953 Trav-Co 620 are correct and be adopted by this Court and whether there is, though not apparent an implied conflict between that decision and two decisions of this Court referred to above and (2) Whether the observation of the Court which decided the proceedings under Order 21. Rule 100 of the Code of Civil Procedure directing the decree-holder to file a fresh execution case, amounted to an order setting aside the sale in the instant case.
2. In ordei to fully appreciate the questions for decision formulated above it will be necessary to state briefly the facts of the case which are no1 in dispute The decree-holder respondent obtained an ex parte money decree against the appellant in money suit 110 of 1950 of the Court of second Munsif. Bhagalpur on 4-12-1950. The decree was transferred for execution to the Munsif. Banka and there the respondent levied Execution Case No. 189 of 1956 and purchased some properties at Court sale. The sale was confirmed and the execution case was dismissed on full satisfaction on 17-12-1957 On 20-3-1958 the respondent obtained delivery of possession through Court and on 18-4-1958 an application under Order 21, Rule 100 of the Code of Civil Procedure was filed by me Padmawati Kumari which was registered as Miscellaneous Case No. 77 of 1958 The respondent was, impleaded as opposite first party and the appellant as opposite second party to the said application. The application was allowed by Munsif. Banka and in the concluding portion of the order he observed :–
”O. P. 1st party will file a fresh execution case and will proceed for recovery of their dues against the O. P. 2nd party”.
The respondent then levied a fresh execution in the Court of Munsif at Bhagalpur which was numbered as Execution Case No. 679 of 1960 and the appellant filed an objection to the maintainability of the execution case alleging that as the sale was confirmed and the execution case was dismissed on full satisfaction the decree-holder was not entitled to reopen the matter unless he got the order confirming the sale set aside The objection was dismissed by the executing Court. The appeal of the judgment-debtor against the said order was also dismissed by the Additional District Judge. Hence the present appeal.
3. It is convenient to dispose of the second question first before taking up for consideration the first question It appears from the order under Rule 101 of Order 21 of the Code of Civil Procedure (Ext. A) that the learned Munsif who passed the order was not at all aware of the legal position that no fresh execution can be levied when an execution case is dismiss-ed on full satisfaction after sale unless the sale is set aside and was of the view that an order on an application under Rule 100 in favour of a third party has the effect of setting aside the sale This is manifest from the following passage of the order : —
“The O. Ps. 1st Party have to suffer for heir own fault The record of the execution case shows that the decree in Money suit No. 110 of 50 was passed on 4-12-1950 and money Exn. Case No. 189 of 56 as dismissed on full satisfaction on 17-12-57 and so a fresh execution case by O. Ps. 1st Party cannot be barred by limitation. Hence I hold that O. Ps. 1st Party will file a fresh execution case and will proceed for recovery of their dues against the O. P. 2nd Party from the properties of O. P. 2nd Party.”
Apart from the above quoted passage there is nothing else in the order to indicate that the learned Munsif intended to set aside the sale and this passage merely shows that as his order would automatically have the effect of setting aside the sale and as a fresh execution was not barred by limitation, it would be open to the decree-holder to file a fresh execution and to proceed for recovery of his dues from the judgment-debtor The judgment-debtor who was opposite 2nd Party in the proceeding under Order 21. Rule 100. Civil Procedure Code, as it appears from Ext A itself did not appear to contest the case as perhaps, he thought that it was not necessary for him to appear in the proceeding inasmuch as the question whether he had am title to the property sold or in other words a saleable interest in it, was beyond the ken of the proceeding and could not be decided in it. The sale could be set aside only on a finding that the judgment-debtor had no saleable interest in the property sold and when he did not appear and contest the proceeding It will not be fair to hold that by making the observation that the decree-holder could file a fresh execution case and proceed for recovery of his dues against the judgment-debtor from his properties, the Court intended to set aside the sale and that its order amounted to selfing aside the sale.
4. In the case of Perumal Abrahan AIR 1953 Trav-Co 620 referred to earlier, there was an express order “The sale of the property is quashed” Therefore that decision is distinguishable and has got no application to the facts of the case before us. However, since the matter was argued at some length it is proposed to examine question No. 1, as formulated above on the assumption that the aforesaid observation in the order under Rule 101 Order 21 of the Civil Procedure Code amounted in substance to an order setting side the sale. It was not contended by learned counsel for the respondent that the decisions of this Court in Benode Sahu’s case AIR 1953 Pat 9 or Surendra Kumar Singh’s case ILR 15 Patna 308 = (AIR 1936 Pat 97) (FB) require reconsideration He only sought to distinguish these cases on the around that in neither of the two cases there was an order quashing or setting aside the sale and contended that, as in the instant case there was an order to that effect which cannot be said to be without jurisdiction and thus binding on the judgment-debtor, who was a party to the proceeding under Rule 100, a fresh execution is maintainable without getting the sale formally set aside by an application under Rule 91 of Order 21 of the Code of Civil Procedure, and relied on the decision of the Travancore-Cochin High Court in Perumal Abraham’s case wherein it was observed :–
“On their behalf if was strenuously argued by their learned counsel that the execution Court went beyond its powers in vacating the sale and permitting further execution by the decree-holder on an application filed by third parties beyond thirty days of the sale and after it was confirmed. The argument was that third parties had no ‘locus standi’ to move for setting aside the sale and all that they were concerned with was to get redilevery of the property if it was actually delivered over to the decree-holder-purchaser or to get a declaration that there was in fact no delivery at all. It was also urged that the Court went wrong vacating the sale on the ground that the judgment-debtors had no saleable interest in the property on an application made beyond thirty days of the sale We cannot quarrel with any of these propositions but they are not sufficient in law to render the order impugned null and void or one made without jurisdiction. The points urged do certainly show that there was irregular assumption of jurisdiction by the execution Court. There was however no want of jurisdiction in the Court over the subject-matter or over the particular question submitted for its decision.
The order was made in a proceeding to which the judgment-debtors were also parties and with due notice to them They submitted to it and thought of repudiating it when it was too late. The only legitimate criticism that can be levelled against the conduct of the execution Court is that in the exercise of the jurisdiction it possessed it acted in a mode different from that prescribed by Civil P. C That amounts only to an irregular exercise of the jurisdiction and does not relate to any question of the existence of the jurisdiction Non-compliance with the rules of procedure does not destroy the jurisdiction of the Court. No doubt the order was wrong but a Court has jurisdiction to decide wrong as well a right.”
At another place it was observed by their Lordships of the Travancore-Cochin High Court that the decree-holder or the judgment-debtors did not seek to impugn the order quashing the sale by any appeal or revision or by a separate suit. Thus in the opinion of their Lordships the order quashing the sale had become conclusive between the parties and could not be reopened If the order was really conclusive between the parties, it would also operate as res judicata between them in any subsequent suit or proceeding. Therefore the question whether an order quashing or setting aside the sale in a proceeding under Order 21, Rule 100 of the Code of Civil Procedure will operate as res judicata in subsequent suits or proceedings against the judgment-debtor, specially when he does not choose to appear and contest the proceeding, as in the case before us, may be examined with advantage. In such a case the order can operate as res judicata only constructively on the ground that the judgment-debtor did not take up a ground of defence which he might and ought to have taken Judgment-debtor is not a necessary party to a proceeding under Order 21. Rule 100 of the Code of Civil Procedure inasmuch as, as observed earlier, the question whether he has got a saleable interest in the property sold is beyond the ken of the enquiry under the proceeding
It was held by a Bench of this Court in the case of Paliram v. Laheria Sarai Central Co-operative Bank Ltd., AIR 1938 Pat 150, that a decision of the Court in summary proceeding under Order 21, Rule 100 is, strictly speaking, not a decision as to title and is also not necessarily final. In another Bench decision of Calcutta High Court in the case of Kedar Nath Bag v. Sadav Chandra Nandi. 19 Cal L J 13 = (AIR 1914 Cal 580), where the Court below had given effect to an objection and restored the mortgagee in possession on the ground that as the sale took place in execution of a decree of rent which operated as a decree for money the purchaser had acquired the holding subject to the interest of the mortgagee from the tenant, it was observed :–
“It is plain that this ground cannot justify the order made under Rule 101, for no question of title can be investigated in a proceeding of this nature”
An order under Rule 101 cannot be conclusive as against the judgment-debtor, is manifest from the language of Rule 103 of Order 21 of the Code of Civil Procedure, because a judgment-debtor cannot bring a suit under that rule It has been held in some decisions that a judgment-debtor is not a necessary party even to a suit under Rule 103. The reason for all this is obvious and that is that the question whether the judgment-debtor has saleable interest in the property sold or not, is beyond the ken of such a proceeding , It cannot therefore, be said that the appellant before us should have appeared in the proceeding under Rule 100 of the Code of Civil Procedure and should have taken a ground of defence that he had a saleable interest in the property sold or he had title to it and that as he failed to do it, the order would operate as res judication against him in a subsequent suit or proceeding.
5. Both the judgment-debtor and the decree-holder were opposite parties to the proceeding under Order 21 Rule 100 of the Code of Civil Procedure Any order or observation in that proceeding would operate as res judicata between them only if it could operate as res judicata between co-defendants. It is well settled that there must be (1) a conflict or interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief and (3) a decision of that question between the co-defendants. As held earlier, in a proceeding under Order 21 Rule 100 of the Code of Civil Procedure, there is no necessity to decide the question of saleable interest or title of the judgment-debtor and therefore, it cannot be said that there was any necessity to decide that question to give the third party applicant the appropriate relief Again it cannot also be said that there was necessarily a conflict of interest between the judgment-debtor and the decree-holder on the question of judgment-debtor’s saleable interest in and title to the property sold in the proceeding The judgment-debtor too might have been interested in a finding that he had saleable interest in and title to the property sold so that any question of the decree-holder’s proceeding against his other properties in future might not arise. It cannot, therefore, possibly be held, that any observation in Ext A can operate as a res judicata between the appellant and the decree-holder-respondent
From the facts as reported in the judgment in Perumal Abraham’s case AIR 1963 Trav Co 620 it is not clear whether the judgment-debtors of that case had appeared in the proceeding started on the application of the strangers and filed any application supporting their claim against that of the decree-holder In those circumstances different considerations may arise and the decision of their Lordships may be said to be correct on the facts of the case but if the judgment-debtor did not choose to appear, in that case as well in view of what has been discussed above, their Lordships cannot be said to have laid down the law correctly Whether such an order would operate as res judicata or not does not appear to have been argued before their Lordships and there is no discussion of this question at all in the Judgment.
6. In the Full Bench decision in the case of Surendra Kumar Singh. ILR 15 Pat 308 : (AIR 1936 Pat 97), referred to earlier, the two questions propounded by the referring Judges were answered by the Full Bench as follows:
“(a) A sale of immoveable property in which the Judgment-debtor has no interest at the date of the sale is not a nullity in the sense of being beyond the jurisdiction of the executing court or void as between the judgment-debtor and the decree-holder or auction purchaser and
(b) The decree-holder if he purchases the property cannot successfully maintain an application for the revival of the execution proceedings on the ground that the sale has not in fact satisfied hip decree to the extent of the sale price unless he gets the sale set aside by applying under Order XXI, Rule 91.”
Their Lordships approved of the decision in the case of Nagendra Nath Ghosh v. Sambhu Nath Pandey, ILR 3 Pat 947 : (AIR 1925 Pat 106) that whereas under the Code of 1882 it was optional to enforce repayment of the purchase money upon setting aside of a sale by having recourse to the procedure provided for execution of a decree for money and the auction-purchaser was not limited to that remedy which was not an exclusive remedy but he could, if he so chose, bring a regular suit to enforce payment of the purchase money, under the present Code no such option is left to him and his only remedy is by way of an application under Order XXI Rule 91 of the Code, and observed that the auction purchaser, therefore, loses the purchase money deposited by him and the sale stands though ineffective against third parties if the judgment-debtor has no saleable interest in the property and if the auction-purchaser has lost remedy under Order XXI, Rule 91.
They further observed:
” The decree-holder auction-purchaser would seem in such circumstances to have a smaller claim to consideration than a third party auction purchaser, for while both of them purchase at their own risk, it is the decree-holder himself that brings the property to sale and he ought to see that it is still the property of his Judgment-debtor, or if he makes a mistake, to discover it within the period of limitation prescribed for applications for setting sales aside. ”
True it is that at one place in the Judgment it was pointed out that in the case before their Lordships there was no adjudication in the presence of the decree-holder and the Judgment-debtor which could be taken to have the effect of taking the sale set aside: and much reliance was placed by learned counsel for the respondent on this observation for distinguishing the decision in the Full Bench case. These observations were made with reference to the decision in the case of Radha Kishun Lal v. Kashi Lal. ILR 2 Pat 829 : (AIR 1924 Pat 273) for the purposes of distinguishing that decision and their Lordships added that in that view of the matter it was not necessary for them to decide its soundness. Adjudication means a decision which will bind the oar-ties in future and may operate as res judicata between them in subsequent proceeding. In the instant case, for the reasons stated above, it cannot be held that there has been an adjudication as between the decree holder and the Judgment-debtor which could be taken to have the effect of taking the sale set aside
7. The decision in Benode Sahu’s case (AIR 1953 Pat 9) was also sought to be distinguished by learned counsel for the respondent on account of the following observations made at two different places in the Judgment.
(1) "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." (2) "There has been no such adjudication either in the execution proceeding it self or in a collateral proceeding which can be said to have the effect of setting aside the sale. "
In the case before us also, it cannot be said that question of the validity of the sale or the title of the Judgment-debtor has been finally decided. No question can be said to have been finally decided unless the decision on it is of such a nature as to bind the parties in future proceedings. In my opinion, if their Lordships of the Travancore Cochin High Court in Perumal Abraham’s case, AIR 1953 Trav Co 620 purported to lay down that even if the Judgment-debtor did not choose to appeal and did not file any application supporting the case of the strangers in the proceeding in which the order quashing the sale was passed, that order would bind him then there is a conflict between that decision and decisions of this Court in Surendra Bahadur Singh’s case, ILR 15 Pat 308 (AIR 1936 Pat 97) (FB) and Benoda Sahu’s case, AIR 1953 Pat 9 and that the reasonings of their Lordships for the decision should not be adopted by this Court.
8. Reliance was placed by learned counsel for the respondent on two decisions of this Court (1) in the case of Radha Kishun Lal v. Kashi Lal ILR 2 Pat 829 : (AIR 1924 Pat 273) and (2) in the case of Mt Bibi Umatul Rasul v. Mt Lakho Kuer, ILR 20 Pal 261 (AIR 1941 Pat 405) In both these cases there were suits by strangers in which their title to the property sold had been declared in presence of the judgment-debtor as well as the decree-holder auction-purchaser Therefore decree in the suit that the stranger had title to the property old and the judgment-debtor had no title to it was binding on the Judgment-debtor in subsequent proceedings, Further the question in Radha Kishun Lal’s case really was one of Limitation only and in the case of Musammat Bibi Umatul Rasul the suit was under Order XXI Rule 63 of the Code of Civil Procedure and Manohar Lall. J who delivered the judgment Chatterji. J. agreeing, observed that the effect of the derision in such a suit was to shake the very foundation of the sale. Both the decisions are, therefore, distinguishable and are of no help to the respondent in the case before us. These two decisions were considered and distinguished in Benode Sahu’s case. AIR 1953 Pat 9.
They were also considered and distinguished in a recent Bench decision of this Court in the case of Kamla Prasad Missir v. Chanchal Tewari, 1967 BLJR 629 : (AIR 1967 Pat 430) Reiving on the ratio of the Full Bench decision in the case of Amar Nath v. Firm Chotelal Durga Prasad. AIR 1938 All 593 (FB), it was held that rights of a decree-holder who has purchased at auction sale are limited to those granted under Order XXI Rules 91 and 92 of the Code of Civil Procedure and if the auction sale is confirmed that becomes res judicata between him and the Judgment-debtor and he cannot reopen the matter by mere application for further execution unless he can set the order confirming the sale aside and as long as the sale held stands, the decree-holder cannot execute his decree on the allegation that his decree has not been satisfied in full. That was a case of a partial failure of the consideration and not of complete failure of the consideration as it is in the case before us and therefore, it may be said that the facts of the two cases are not exactly similar: but it appears that in the case after a stranger had obtained a decree that he had title to the 3/4th interest in the property sold in a suit under Order XXI Rule 63 of the Code of Civil Procedure, the decree-holder filed an application before the executing court seeking permission to execute his decree for realisation of 3/4th of the decretal amount. It was registered as a miscellaneous case and an order was passed in it granting permission to the decree-holder to levy fresh execution. That order can very well be said to be an order impliedly setting aside the sale but their Lordships ignored that order altogether and held that the fresh executions levied by the decree-holder were not maintainable. On the authority of that decision the order passed under Order XXI Rule 101 of the Code of Civil Procedure in the case before us directing the decree-holder to few fresh execution has also to be ignored.
9. Reference may also be made to a recent decision of the Supreme Court in the case of Janak Raj v. Gurdial Singh, 1967 BLJR 639 : (AIR 1967 SC 60). In that case after the sale was held and before it could be confirmed, the ex parte decree, in execution whereof the sale was held, itself was set aside. The executing court had stayed the execution of the decree, i. e the confirmation of the sale till the disposal of the application for setting aside the ex parte decree. After setting aside of the ex parte decree the auction-purchaser made an application for revival of the execution proceedings and for confirmation of the sale The Judgment-debtor objected to it contending that the application for revival of the execution proceedings was not maintainable after setting aside the ex parte decree. The executing court overruled the objection of the Judgment-debtor and confirmed the sale. The order was affirmed by the first appellate court but a single Judge of the Punjab High Court who heard the second appeal and a Bench too of the same court which heard the Letters Patent Appeal from the said order of the single Judge, took a different view from the two courts below and the order confirming the sale was held to be illegal.
The Supreme Court allowed the appeal agreeing with the view taken by the executing court and the first appellate court and observed that the auction-purchaser was entitled to a confirmation of sale notwithstanding the fact that after holding of the sale the ex parte decree which was put into execution, had been set aside. After examining various provisions of the Code of Civil Procedure, particularly those of Order XXI, their Lordships of the Supreme Court said:
If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in Order XXI or in Part II of the Code of Civil Procedure of 1908 which contains Sections 36 to 74 (inclusive).
It is to be noted however that there may be cases in which, apart from the provisions of Rules 89 to 91, the court may refuse to confirm a sale, as, for instance, where a sale is held without giving notice to the Judgment-debtor, or where the court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held Leaving aside cases like these, a sale can only be set aside when an application under Rule 89 or Rule 90 or Rule 91 of Order XXI has been successfully made.”
This decision of the Supreme Court also supports the view taken in the foregoing paragraphs and throws doubt on the correctness of the decision of this Court in the case of Mt Bibi Umatul Rasul ILR 20 Pat 261 : (AIR 1941 Pat 405).
10. It is further unfortunate that as a result of this decision the decree-holder respondent will be deprived of his decretal dues but it cannot be helped. As observed in the Full Bench decision of Surendra Kumar’s Singh case. ILR 15 Pat 308 : (AIR 1936 Pat 97) (FB) it was for the decree-holder to see that the property was still of the Judgment-debtor when it was put to sale and if he made a mistake to discover it within the period of limitation prescribed for application for setting sales aside, he has to reap the consequences. He also did not care to institute a suit under Rule 103 of Order XXI of the Code of Civil Procedure for setting the title of the Judgment-debtor in the property sold declared and for a declaration that the order under Rule 101 of the Code of Civil Procedure was wrong. It is well established that there is no warranty of title of the Judgment-debtor by the Court in the properties sold at auction.
11. In the result, the appeal is allowed, orders of the courts below dismissing the Judgment-debtor’s objection under Section 47 of the Code of Civil Procedure are set aside and the execution petition of the decree-holder respondent is dismissed as not maintainable. In the facts and circumstances of the case. I would direct that the parties bear their own costs throughout.
Ramratna Singh, J.
12. I agree. It is well-settled that, in the case of a money decree, the execution proceedings terminate with the confirmation of the sale at which the price paid satisfies the decree and the proceeding for delivery of possession of the property sold is ancillary. Ordinarily, before confirmation under Rule 92 of Order 21 of the Code of Civil Procedure, a sale can be set aside under Rule 89, 90 and 91 — the last rule being applicable on an application by the auction purchaser to set aside the sale on the ground that the Judgment debtor had no saleable interest in the property. There are some exceptions to this proposition of law, two of these exceptions being mentioned in the Supreme Court case of Janak Raj, 1967 BLJR 639 : (AIR 1967 SC 608); but the exceptions are not relevant to the instant case. The decree-holder-auction purchaser did not make any application, in the instant case, before confirmation of the sale, to set aside the same. He allowed the sale to be confirmed, believing that the Judgment debtor had saleable interest in the property. When, however, a third party was dispossessed of the property by delivery of possession through court in pursuance of the sale, that partv made an application under Rule 100 of Order 21, and after necessary investigation the court accepted his claim that he was in possession of the property on his own account under Rule 101. This order was conclusive, subject to a suit by the auction purchaser to establish his right to the present possession of the property (see Rule 103); but no such suit was instituted. Thus, the order under Rule 101 became final: but the sale, which was valid–not void or nullity–on the date it was held or confirmed, stood unaffected. Of course, according to the decisions of this High Court, an auction sale is set aside automatically, when in a concurrent proceeding it is decided that the judgment-debtor had no title to or interest in the property on the date of sale; but in the instant case there is no such decision. Even in Ext. A, the order disposing of the proceeding under Order 21, Rule 100 of the Code, there is no decision to the said effect. The direction in the order that the decree holder-auction purchaser may start a fresh execution proceeding, for recovery of the decretal dues, against the Judgment debtor cannot be interpreted as a decision to the said effect, because in such a proceeding the court is concerned with possession only and the question of title is beyond the scope of the proceeding. In the absence of any decision regarding title of the Judgment debtor in Ext. A, it cannot be held that the sale was set aside; and, therefore, the appeal succeeds.