{"id":225762,"date":"1952-07-14T00:00:00","date_gmt":"1952-07-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/benode-sahu-vs-dilwar-jama-khan-on-14-july-1952"},"modified":"2019-04-09T18:20:49","modified_gmt":"2019-04-09T12:50:49","slug":"benode-sahu-vs-dilwar-jama-khan-on-14-july-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/benode-sahu-vs-dilwar-jama-khan-on-14-july-1952","title":{"rendered":"Benode Sahu vs Dilwar Jama Khan on 14 July, 1952"},"content":{"rendered":"
Patna High Court<\/div>\n
Benode Sahu vs Dilwar Jama Khan on 14 July, 1952<\/div>\n
Equivalent citations: AIR 1953 Pat 9, 1953 (1) BLJR 11<\/div>\n
Author: Das<\/div>\n
Bench: Das, Ramaswami<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Das, J.  <\/p>\n
1. This is an appeal under the Letters Patent from the decision of a Single Judge of this Court, dated the 28th January, 1948. The facts out of which the appeal arises may be shortly stated. The appellant before us obtained a decree for a sum of Rs. 266\/- and . odd annas against the respondent on the 4th of November, 1943. The decree was put in execution in March, 1944, and on the 13th of August, 1944, certain properties of the judg-\n<\/p>\n
    ment-debtor were sold and purchased by the appellant. On the 21st oi September, 1944, the sale was confirmed and on the 9th of October,
\n1944, the execution case was dismissed on full satisfaction of the decree. When the appellant asked for delivery of possession, he was resisted by the wife of the judgment-debtor, who preferred an objection under the provisions of Order XXI, Rule 100, Code of Civil Procedure. This gave rise to a miscellaneous proceeding, and the claim of the wife of the judgment-debtor was allowed on the 14th of February,
\n1945.\n<\/p>\n
 Some two months after, on the 11th of April.\n<\/p>\n
1945, the  appellant  applied for a iresh execu-\n<\/p>\n
tion of the decree, ignoring the sale which had
\n  taken place and the order dismissing the execution case on full satisfaction, passed on the 9th of October, 1944. The learned Munsif who dealt with the application in the first instance held that the appellant not having applied to set aside the sale under the provisions of Order XXI, Rule 91, Code of Civil Procedure within thirty days of the sale, a fresh execution petition was not maintainable. Against this order of the learned Munsif there was an appeal to the District Judge, who reversed the decision<\/p>\n
of the learned Munsif and held that the second application for execution was not hit by the provisions of Order XXI, Rule 91, or Rule 92, Code of Civil Procedure : therefore, he held that the second execution was maintainable. In second appeal Reuben J. (as he then was) reversed the decision of the learned District Judge, and restored that of the learned Munsif, holding that a second execution was not maintainable in the circumstances of the case.\n<\/p>\n
 2. Mr. K. D. Chatterji, appearing on behalf of the appellant, has contended before us that in view of the order passed in the proceeding under Order XXI, Rule 100, Code of Civil Procedure, the sale was in substance held to be ineffective; therefore, it was open to the appel-lant to levy a fresh execution of the decree. Learned Counsel has placed great reliance on two decisions of this court — ‘Radha Kishun Lal v. Kashi Lal’, 2 Pat. 829 and — ‘Bibi Uma-tul Rasul v. Lakho Kuer’, 20 Pat. 261. In –‘Radha Kishun Lal’s case’, 2 Pat 829, the facts were these. Subsequent to the purchase of a certain property in execution of his decree by the decree-holder, a third person sued the auction-purchaser and the judgment-debtor for a declaration of his title to the property and for possession and obtained a decree. It was held that the effect of the decree in favour of the third person was to set aside the execution sale and revive the decretal debt, and that no formal order setting aside the sale was necessary. Mullick, J. with whom Bucknill, J. concurred, gave the following reasons in support of the decision :\n<\/p>\n
“The   decree-holder and the judgment-debtor were both parties to the suit and, therefore they are bound by the order. The argument that under the present Civil Procedure Code no sale can be set aside, except by a resort to the procedure of Order XXI is. in my opinion, not well founded; nor is it necessary that the execution court should formally cancel the order of satisfaction which was recorded after the saJe of lot No. 1. before the-decree-holder can proceed to recover the debt which has been revived in consequence of the decree declaring the sale of lot No. 1 to be-invalid.”\n<\/p>\n
 3. In the case of — ‘Bibi Umatul Rasul’ 20 Pat. 261 the facts were these : A decree for money was put in execution, and in execution of that decree certain properties were attached. Upon the attachment a claim was preferred by a third party under Order XXI, Rule 58, Code of Civil Procedure, but it was rejected. One rejection of that claim the sale of the attached property was held and the decree-holder became the auction-purchaser. The sale was duly confirmed and a note was made in the execution register that the decree was fully satisfied. In the meantime, within the period of limitation provided by law, the claimant instituted a suit under the provisions of Order XXI, Rule 63, Code of Civil Procedure, making the decree-holder and the judgment-debtor as party defendants. The suit was dismissed by the trial court but on appeal it was decreed, with the result that the title to the property which had been purchased by the decree-holder was declared to be with the claimant. Thereupon the decree-holder applied afresh for execution of the same decree. It was held by this court that the foundation upon which the sale stood was affected and disappeared when the decision in the suit under Order XXI, Rule 63, Code of<\/p>\n
Civil Procedure, held that title to the property was with the claimant.\n<\/p>\n
4. Mr, Chatterji has sought to bring the present case within the principle laid down in
\nthe two aforesaid decisions. In my opinion, the present case is not covered by those decisions. It is necessary to emphasise the nature and scope of a proceeding under Order XXI, Rule 100, Cod_e of Civil Procedure. Rule 100 states, ‘inter alia’, that where any person other than the judgment-debtor is dispossessed of immov-\n<\/p>\n
able property by the holder of a decree, or where such property has been sold in execution
\nof a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. Rule 101 says that where the court is satified that the applicant was in possession of the property on his own account
\nor on account of some  person other than the judgment-debtor, it shall direct that the appli-cant be put into possession of the property. In the case before us, there was no adjudication of title  so  as  to  affect the  sale  which  was  held on the  13th of August,  1944.   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. Under Rule   103   of   Order   XXI   it   was   open   to   the appellant  to  bring  a   suit for  an   adjudication on the question of title.   The appellant did not
\ndo so, but remained content with the adverse decision given on the question of possession in the proceeding under Order XXI, Rule 100, Code of Civil Procedure. In the two cases on which Mr. Chatterji has relied, there was an adjudication of title which affected the validity
\nof the sale. As was pointed out in — ‘Radha Kishun Lal’s case’, 2 Pat. 829, the effect of the decree in favour of the third party — a
\ndecree which bound both the decree-holder and the judgment-debtor — was to set aside the sale, arid no formal order to that effect was required. In — ‘Bibi Umatul Rasul’s case’, 20 Pat. 261 also the decree affected the very foundation of the sale. In the case before us there is no adjudication such as to affect the validity of the sale. The present case approached more closely the decision in — ‘Surendra Kumar v. Srichand Nahata’, 15 Pat. 308 (F.B.) where — ‘Radha Kishun Lal’s case’, 2 Pat. 829 was distinguished on the ground that in the case before their Lordships of the Full Bench, there was no adjudication which could be taken to have the effect of setting the sale aside. That distinction is also present in the case before us. As I have already pointed out, there is no adjudication in the present case which has the
\neffect  of  setting  the   sale   aside.   This,  in  my
\nopinion, is the short answer to the contention of Mr. Chatterji.\n<\/p>\n
 5. It is unnecessary to consider certain other wider questions which have been canvassed before us, namely, whether there is an analogy between proceedings such as those under Order XXI, Rule 58, Code of Civil Procedure, which take place before the sale, and proceedings such as those under Order XXI, Rule 100, Code
\nof Civil Procedure, which take place after the sale. It is also unnecessary to consider in this case the rights of the auction-purchaser with regard to a claim for refund of the money which was paid by him. The principal question for decision before us is whether the appellant can<\/p>\n
levy a second execution, ignoring altogether the sale which was held on the 13th of August, 1944, and on the confirmation of which the execution case was dismissed on full satisfaction. The answer to this question is that the appellant not having taken any steps to set aside the sale within time, under the provisions of Order XXI, Rule 91, Code of Civil Procedure, the sale has become absolute under the provisions of Order XXI, Rule 92, Code of Civil Procedure. There has been no such adjudica-, tion either in the execution proceeding itself or in a collateral proceeding which can be said to have the effect of setting aside the sale which was held on the 13th of August, 1944. The result, therefore, is that the decision of the learned Single Judge is a correct decision, and there is no merit in the appeal. The appeal is accordingly dismissed. There will l^e no order for costs as there has been no appearance on behalf of the respondent, at the hearing of the appeal.\n<\/p>\n
 Ramaswami, J.\n<\/p>\n
 6.   I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Benode Sahu vs Dilwar Jama Khan on 14 July, 1952 Equivalent citations: AIR 1953 Pat 9, 1953 (1) BLJR 11 Author: Das Bench: Das, Ramaswami JUDGMENT Das, J. 1. This is an appeal under the Letters Patent from the decision of a Single Judge of this Court, dated the 28th January, 1948. 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