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1906 DIGILAW 50 (CAL)

Boharia Rudrani Koer v. Ram Pertap Mull

1906-03-12

body1906
JUDGMENT 1. This is an appeal on behalf of the Plaintiff against the judgment of the District Judge of Sarun reversing a decree of the Subordinate Judge. The suit was brought for possession of certain property purchased by the Plaintiff from one Raju Singh who had purchased it at an auction sale in execution of a decree which he bad obtained against his judgment-debtor. The decree which Raju had obtained, he proceeded to execute by putting up to sale on 6th January 1897. ON the 28th January, Defendants NOS. 1 and 2 obtained an order attaching Raju's decree. Raju never obtained a sale certificate under BOO. 316, C. C. P., In respect of the property which he had purchased at the auction sale but that certificate was granted to the persons who had attached his decree and they obtained possession of the property. On the same day that the Defendants Nos. 1 and 2 attached Raju's decree, Raju sold the Property which he had purchased at the auction sale to the Plaintiff in this suit and the Plaintiff sued for possession of the same and for the sale certificate to be made over to her. The first point that is taken by the learned vakil for the Appellant Is that the sale of the property at which Raju purchased, operated to satisfy the decree which Raju obtained and therefore there was nothing for the Defendants to attach 2. We do not think that the sale was necessarily a satisfaction of the decree In favour of Raju. In the first place it has not been shown that any entry of satisfaction of the decree was ever made on any record of the Court until the 16th March when the sale was confirmed In favour of Defendants Nos. 1 and 2. No entry of satisfaction appears to have been made at the time when the decree was attached. Secondly, the sale was not necessarily a sufficient satisfaction because the Bale was for a much less sum than the decree was made for. It is absurd to suppose that the decree could not be subsequently executed in respect thereof. Then the effect of the attachment of the decree by Defendants Nos. 1 and 2 was to put them in the same position as that of Raju himself. Now what was his position? It is absurd to suppose that the decree could not be subsequently executed in respect thereof. Then the effect of the attachment of the decree by Defendants Nos. 1 and 2 was to put them in the same position as that of Raju himself. Now what was his position? He would have been entitled, if the decree had not been attached, to have got the sale In execution of the decree confirmed to him under sec. 316 of the Civil Procedure Code, and on the issue of a certificate to him under that section, his title to the property would have become absolute from the date of the issue of that certificate, but that he could not do because his decree had been attached. He could not enter up satisfaction of the decree, because the decree had been attached and he no longer entitled to enter satisfaction. It seems to us that the position of Defendants Nos. 1 and 2 was the position which Raju would have occupied if the decree had not been attached and they were entitled to take all the steps which Raju would have been entitled to take. That being so, they were entitled to the property sold under the decree, the execution of which was commenced by Riju and which was completed by his attaching creditors. We think that the judgment of the District Judge was right and the appeal is dismissed with costs.