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1961 DIGILAW 81 (PAT)

Kamla Prasad Missir v. Chanchal Tewari

1961-08-31

N.L.UNTWALIA

body1961
Judgment N.L.Untwalia, J. 1. These two Miscellaneous Appeals by the decree-holder have arisen, to all intents and purposes, out of one proceeding for execution of the decree-holders decree for money. In Execution case No. 292 of 1951, land measuring I bigha 17 kathas and 2 dhurs was sold on the 7th of May, 1952, and by the said sale, which was confirmed on the 27th of June, 1952, the entire decree was satisfied. Some persons, claiming three-fourths interest in the land sold, ultimately succeeded in getting a decree in a suit instituted under Order 21 Rule 63 of the Code of Civil Procedure, and, in getting their three-fourths share of the land sold released from sale. Thereafter, on the 30th of April, 1958, the decree-holder filed Miscellaneous Case No. 129 of 1958 under Sec.151 of the Code for permission to execute the decree for the balance amount, treating the sale as a good sale in respect of the four annas share of the judgment-debtor and wanted fresh execution to he levied for the balance of the proportionate amount of the decree remaining unsatisfied. According to the finding of the lower appellate Court, no notice was served on the judgment-debtor in this Miscellaneous case, but permission sought for bv the decree-holder was granted. On such permission being granted, he filed Execution Case No. 315 of 1958 on the 27th of June, 1958, for realisation of the three fourths amount of the decree which, according to him, remained unsatisfied. I may mention here that no steps were taken by the decree-holder for the setting aside of the sale held on the 7th of May, 1952, either for its being set aside in whole or in part. In Execution Case No. 315 of 1958, land measuring 1 bigha 5 kathas and odd belonging to the judgment-debtor-respondent was sold for a sum of Rs. 700.00 on the 7th of October, 1958. The decree-holder obtained delivery of possession on the 26th of November, 1958. The judgment-debtor then filed two applications on the 22nd of December, 1958, one for recall of the order dated the 24th of May, 1958, by which permission was given to the decree-holder to levy fresh execution for realisation of the balance of the amount in Miscellaneous Case No. 129 of 1958, and the other for the setting aside of the sale. In these applications the judgment-debtor stated that neither any notice was served on him in Miscellaneous Case No. 129 of 1958, nor any notice or processes were served in Execution Case No. 315 of 1958. The appellate Cout has accepted this case and held that no notice or processes were served as alleged by the judgment-debtor. It has further accepted the case of the judgment-debtor that notice and processes were fraudulently suppressed, and the fraud became known to the judgment-debtor on the 26th of November, 1958, only when delivery of possession was effected on the property sold on the 7th of October, 1958. In that view of the matter, the lower appellate Court, has held that although the permission given to the decree-holder for starting the fresh execution case as also the execution case started was not without jurisdiction, and, therefore, not void, the petition of the judgment-debtor for setting aside the sale is not barred by limitation in view of the provisions of Sec.18 of the Limitation Act. Hence the appeals by the decree-holder. 2. In my opinion, these appeals have got to fail for the simple reason that the effect of the decree in the suit instituted under Order 21 Rule 63 of the Code of Civil Procedure by the persons claiming twelve annas interest in the property sold on the 7th of May, 1952, was not setting aside the sale, either in part or in whole. This point is well covered by a Bench decision of this Court in Mt. Bibi Umatul Rasul V/s. Mt. Lakho Kuer, AIR 1941 Pat 405. In that case it was held that if in a proceeding under Order 21 Rule 58, or in a suit under Rule 63 of that Order, the entire property sold is released, the sale in its entirety goes, and the decree-holder can levy fresh execution. The Full Bench decision of this Court in Surendra Kumar Singh V/s. Srichand Mahta, ILR 15 Pat 308 : (AIR 1936 Pat 97), which was a case relating to the release of the entire property, was distinguished on the grounds mentioned at page 406 of the report. The Full Bench decision of this Court in Surendra Kumar Singh V/s. Srichand Mahta, ILR 15 Pat 308 : (AIR 1936 Pat 97), which was a case relating to the release of the entire property, was distinguished on the grounds mentioned at page 406 of the report. Nonetheless, it has been held, to quote a few lines from page 407, column 2, and 408 column 1 "But I am of opinion that where the suit is brought under the provisions of Order 21 Rule 63, Civil Procedure Code no formal order for setting aside the sale is required and the decree-holder auction-purchaser should be allowed to proceed to execute his decree afresh provided there is a total failure of consideration, that is to say, he loses by the suit the entire property purchased by him in auction ..... The decree-holder in such cases is entitled to ask for such relief from the executing Court as will place the parties in the same position which they would have occupied but for the erroneous order rejecting the claim. And it is the duty of the Court in exercise of its inherent powers to grant such relief, bearing in mind that there can be no partial setting aside of a sale. (The underlining (here into ) are mine). 3. Mr. A.K. Roy, learned Advocate for the appellant, drew my attention to the following lines of the Patna amendment of Order 21 Rule 60 of the Code of Civil Procedure : "Where the property has been sold, such order shall have the effect of setting aside the sale; and if it has been purchased by a third party in good faith, the Court may make such order for his compensation by the decree-holder or objector, to an extent not exceeding 12 1/2 per cent, of the purchase price, as it thinks fit." In my opinion, even this Patna amendment does not help him in this case. It is consistent with the Bench decision, of this Court in AIR 1941 Pat 405. It may be reasonably argued that where an order has been made under Rule 60 releasing the property in part, the effect of the order is setting aside the sale. But that effect must be in relation to the whole sale. It is consistent with the Bench decision, of this Court in AIR 1941 Pat 405. It may be reasonably argued that where an order has been made under Rule 60 releasing the property in part, the effect of the order is setting aside the sale. But that effect must be in relation to the whole sale. No words are to be found in the second paragraph of Rule 60 as amended by this Court to indicate that when a property is released in part, the effect of such order is to set aside the sale in part. I am, therefore, of the view that the sale held on the 7th of May, 1952, remained. It was not set aside either in part or in whole, nor was it treated by the decree-holder himself as set aside in whole. In that view of the matter, there is no escape from the position that the entire decree, so long that sale stood, stood satisfied by that sale, although by that sale the decree-holder got only four annas out of 1 bigha 17 kathas and 2 dhurs. But the decree in the suit filed by the co-sharers had not the effect of reducing the amount for which the property was sold on the 7th of May, 1952. That being so, it is clear that the whole decree stood satisfied even after release of the twelve annas share in the property sold on the 7th of May, 1952, and there was no outstanding decree to be executed in Execution Case No. 315 of 1958. It is manifest therefore, that the permission given for execution of the decree for the balance of three-fourths amount was without jurisdiction, and the entire execution proceedings were also null and void. That being so, in my opinion, the application filed by the judgment-debtor on tho 22nd of December, 1958, within three years of the delivery of possession, in view of the decision of the Supreme Court in Merla Ramanna V/s. Nallaparaju, (S) AIR 1956 SC 87 , is within time and has rightly been held to be so. This view I have expressed and taken even apart from the findings of the lower appellate Court that the application for setting aside the sale is within time though the execution proceeding was not void, nor was the sale void. 4 In the result the appeals fail and are dis missed. This view I have expressed and taken even apart from the findings of the lower appellate Court that the application for setting aside the sale is within time though the execution proceeding was not void, nor was the sale void. 4 In the result the appeals fail and are dis missed. But I would make no order as to costs in either of the appeals.