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1949 DIGILAW 183 (ALL)

Mahmud Ullah Khan v. Nawab Singh

1949-08-26

MALIK, WALI ULLAH

body1949
JUDGMENT Malik, CJ. - This is a judgment debtor's appeal. 2. The decree-holder Must. Bilqis Jahan Begam obtained a decree against the assets of one Must. Khairunnisa deceased. The decree was passed by a Delhi Court. It was transferred for execution to Kanpur and the Appellant Mahmud Ullah Khan was impleaded as the legal representative of Must. Khairun-nisa. The decree-holder wanted to proceed against certain zamindari properties. These properties were held to be ancestral and the proceedings were, therefore, transferred u/s 68 of the Code of CPC to the Court of the Collector on the 29th July, 1935. On the 28th of August, 1941, the Appellant filed an application in the Court of the munsif that the decree had been adjusted out of Court and the parties had agreed that the decree-holder should remain in possession of a house and repay himself out of the income of that house and the decree was, therefore, no longer executable. Notice of this was issued to the decree-holder and on the 30th of August, 1941, the learned Munsif passed an interim order staying further proceeding before the Collector. For some reason, which learned Counsel for the Appellant was not able to explain, this order of stay was never communicated to the Collector. The fact that it was not communicated is admitted and the Collector in ignorance of this stay order sold the property on the 2nd of January, 1942, and it was purchased by one Nawab Singh who was not a party to the suit and was an independent third party. The sale in his favour was confirmed on the 2nd of February, 1942, The Appellant filed objections before the executing Court but his objections failed. He, thereupon, filed the suit out of which this appeal has arisen for possession of the property in suit on the ground that the auction sale in favour of Nawab Singh was void. 3. The suit was dismissed by the trial Court but was decreed by the lower appellate Court and the decree of the appellate Court was set aside by a learned single Judge of this Court. 4. It was held by their Lordships of the Privy Council in the case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan ILR All. 3. The suit was dismissed by the trial Court but was decreed by the lower appellate Court and the decree of the appellate Court was set aside by a learned single Judge of this Court. 4. It was held by their Lordships of the Privy Council in the case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan ILR All. 166 that a sale in execution of a decree in force at the time cannot afterwards be set aside as against a bona fide purchaser, not a party to the decree, on the ground that, on further proceedings, the decree had been reversed or set aside. This decision has been uniformly followed in every High Court as it was bound to be followed and the law has not changed since 1887. The Plaintiff had, therefore, no right to claim possession of the property from the auction purchaser Nawab Singh who was a bona fide purchaser for value and was not a party to the decree. Learned Counsel has however, urged that the sale was void inasmuch as the stay order had been passed on the 30th of August 1941 even though the stay order may not have been communicated to the Collector who was selling the property. That point is covered by a Full Bench decision of this Court in the case(sic) of L. Parsotam Saran Vs. B. Barhma Nand and Others . 5. There is, therefore, no force in this appeal and it is dismissed with costs.