Indumati Banerjee v. United Bank of India — 1977 DIGILAW 406 (CAL)

JUDGMENT Pradyot Kumar Banerjee, J. 1. This appeal at the instance of the claimant arises out of a reference under sections 18 and 30 of the Land Acquisition Act against an award made by the Special Land Acquisition Collector. Cross objections by the respondents, namely, the United Bank of India, Jagannath Roy Balaram Roy of Bhagyakul and Tapan Kumar Mookherjee were filed. All the objectors obtained decrees against the owners whose property was acquired under the Land Acquisition Act, namely, Ramdas Mukherjee and Nilmani Mukherjee. The appellant herein is Indumati Banerjee who was the heir of late Indu Bhusan Banerjee who purchased from Renuka Debi the 1/3rd share of the part acquired property in execution of a money decree against Ramdas Mukherjee in 1955, it is alleged long before the award and taking over of possession of the lands by the Land Acquisition Collector. There are other claimants against the judgment-debtors who were the owners of the acquired land that is Ramdas Mukherjee and Nilmoni Mukherjee. The United Bank of India based its claim on a mortgage bond of 1947 which was executed by Ramdas Mukherjee and Bamandas Mukherjee, the father of Nilmoni Mukherjee and by a deceased brother of theirs. The claim of the United Bank of India so far as their dues under the mortgage are concerned is not challenged. The United Bank of India obtained a decree in Suit No. 555/55 of the Original Side of the High Court on the basis of a hand-note executed by Ramdas Mukherjee alone. In execution of that decree a portion of the acquired property was attached on 14.1.1957. The said attachment was subsisting at the dale of the award and also at the date of delivery of possession of the lands taken by the L.A. Collector, that is, 27.3.1957. It is alleged that the amount under the said decree against Ramdas Mukherjee in his personal capacity is realizable out of the compensation money. The Roys of Bhagyakul based their claim on a decree in Suit No. 996 of 1949 of the Original Side of the High Court and the said decree was put into execution in M. Ex. Case No. 22 of 1951 of the Subordinate Judge's 2nd Court, Hooghly and the (acquired) property was attached in the said execution case on 31.1.1952. The Roys of Bhagyakul put the decree in execution for a claim of Rs. 217679/-. Case No. 22 of 1951 of the Subordinate Judge's 2nd Court, Hooghly and the (acquired) property was attached in the said execution case on 31.1.1952. The Roys of Bhagyakul put the decree in execution for a claim of Rs. 217679/-. The United Bank of India claimed Rs. 8128/-. The claim of the appellant in this case is that she is entitled to 1/3rd share in the acquired property as she, purchased the same from Renuka Debi, auction purchaser in Money Execution Case No. 15 of 1953. Before the auction sale, the property was attached in Money Execution Case No. 15 of 1953 by Renuka Debi and Renuka purchased the said property in auction held by the Court on 13.8.1955. The sale was confirmed on 17.8.1955. Renuka sold the property to the predecessor-in-interest of the appellant for a sum of Rs. 7000/- 2. The property was notified for acquisition under section 4 (1) of the Land Acquisition Act on 9.1.1956 and there was a declaration made under section 6 of the Land Acquisition Act on 4.10.1956. The award in the land acquisition case was made by the Collector on 16.2.1957 and the possession of the land in question was taken under section 16 of the Land Acquisition Act on 27.3.1957. The present appeal has been filed by Indumati and others. The predecessor-in-interest of Indumati and others is the transferees from Renuka Debi who purchased 1/3rd share in the property in the auction sale as hereinbefore stated. The United Bank of India preferred a cross-objection. Tarun Kumar Mukherjee also preferred a cross-objection in connection with the appeal filed by Indumati and others. It may be mentioned that a trust deed was executed on 11.11.1957 by Ramdas, Bamandas and Jagannath Mukherjee and the object of the trust was repayment of the ancestral and joint debts of the executants incurred for meeting the expenses of marriages of their daughters and of their own maintenance. It has been further provided that the ancestral and joint debts were the mortgage debts due to the United Bank of India and also to the Roys of Bhagyakul. It was further provided in the said trust deed that any of the executants can revoke the trust and can claim for himself 1/3rd share of the property covered by the trust deed. 3. It was further provided in the said trust deed that any of the executants can revoke the trust and can claim for himself 1/3rd share of the property covered by the trust deed. 3. The learned judge hearing the reference under section 30 came to a finding that the trust deed is not binding on the claimant and there was no cross-objection by the executants of the trust or by the trustees. We must, therefore, confirm the findings that the trust deed created on 11.11.1951 is not binding on the creditor who had laid claim on the compensation money. So far as the United Bank of India's claim is concerned it appears that the United Bank of India is entitled to have their mortgaged decree satisfied out of the compensation money. In so far as the mortgage decree of the United Bank of India is concerned, none of the claimants did raise any objection to it. The cross-objection filed in this court by the United Bank of India is in respect of payment of interest only. We are however not inclined to allow the cross-objection of the United Bank of India on that score. We, therefore, dismiss the cross-objection filed by the United Bank of India. In so far as the United Bank of India is concerned, the United Bank of India has a money claim against Ramdas alone on a hand-note. The point for decision, therefore, in this case is whether the appellant has the first priority over the other claimants in view of the attachment and purchase of the acquired property in auction on 13.8.1955 which was confirmed on 17.8.1957. It is stated that the property was in the meantime acquired under Land Acquisition Act and the possession of the same was taken on 27.3.1957 after the award under section 11 of the Land Acquisition Act has been made and secondly whether by her purchase Renuka got right, title and interest in respect of the 1/3rd share of the property which Ramdas Mukherjee held. The Roys of Bhagyakul attached the property in question on 13.1.1952 after the acquisition has been made and the delivery of possession of the property was taken by the Land Acquisition Collector. Rays of Bhagyakul proceeded with the execution case and in execution of their decree the Roys of Bhagyakul auction purchased the right, title and interest of the judgment-debtors for Rs. Rays of Bhagyakul proceeded with the execution case and in execution of their decree the Roys of Bhagyakul auction purchased the right, title and interest of the judgment-debtors for Rs. 85,200/- on 15.4.1957. The said sale was confirmed on 11.7.1960. Tarun Kumar Mukherjee got a decree for Rs. 34,400/- and the money execution case was flied, being Money Execution Case No. 2 of 1958 and attached the compensation money in the said execution case. Thirdly, the question arises again whether the Roys of Bhagyakul's decree in so far as Rs. 85,200/- is concerned which was put into execution and the purchase of the right, title and interest of the judgment-debtor should be deemed to be satisfied and fourthly, whether T.K. Mukherjee is entitled to have his dues under the decree satisfied out of the compensation money and lastly whether the United Bank of India is entitled to have his dues satisfied out of the compensation money in respect of a claim based on a hand-note. 4. Mr. S.C. Mitter on behalf of the appellant contended that the appellant has purchased 1/3rd share of Ramdas out of the compensation money awarded in respect of the property in question in which Ramdas and two brothers are entitled to in equal shares all the death of one of the brothers, Ramdas and others were entitled to 1/2 share each but by the auction sale on 13.8.1955, the transferor of the present appellant, auction-purchased the right title and interest of 1/3rd share of Ramdas in respect of the attached property and she is entitled to a third share in the compensation money awarded in favour of Ramdas in the land acquisition case. Mr. Mitter contended that the auction sale was held on 13.8.1955 and the sale was confirmed on 17.8.1957 which means that under section 65 of the Civil Procedure Code the sale will relate back to the date of auction sale and the auction purchaser gets the full title in respect of the property. Therefore, the acquisition or possession of the property on 27.3.1957 by the Collector is of no consequence to the appellant's claim. 5. Mr. Ghosh Chowdhury on behalf of the respondent contended that no title will pass in favour of the auction purchaser unless the sale is confirmed, and therefore by the Kobalas executed by Renuka in favour of the appellant, the appellant has not acquired anything as auction purchaser. 5. Mr. Ghosh Chowdhury on behalf of the respondent contended that no title will pass in favour of the auction purchaser unless the sale is confirmed, and therefore by the Kobalas executed by Renuka in favour of the appellant, the appellant has not acquired anything as auction purchaser. Secondly, it is argued by Mr. Ghosh Chowdhury that as there was no confirmation of sale and the possession was taken before the date of such confirmation by the Collector, the property bad vested in the State free from all encumbrances and as such Ramdas hall not got title. What was acquired under the Land Acquisition Act was the properly of Ramdas alone on which the appellant has no claim whatsoever. Mr. Ghosh Chowdhury further contended that by the purchase from Renuka the vendee has only purchased the right to sue which according to Mr. Ghosh Chowdhury is not transferable in law. Mr. Ghosh Chowdhury further contended that though the purchaser has no absolute interest in the property she has a substantial interest in the decreetal dues and she is entitled to the claim of the sum advanced. 6. Mr. Dasgupta supported the argument of Mr. Ghosh Chowdhury and further contended that by the purchase in the auction, the auction purchaser has only an incoherent right and unless the sale is confirmed the auction purchaser cannot acquire any right to the property by such auction purchase. It is argued by him that the confirmation of sale is not a routine matter. 7. Elaborating the argument, Mr. Mitter contended that the attachment by Renuka was made on 13.8.1955 and that attachment is effective in respect of all claims based on a private sale and therefore the private sales and void in respect of the properties attached in execution of a decree. Section 64 of the Civil Procedure Code does not apply in respect of sale and attachment. It is further argued that the attachment is neither a charge nor a lien in respect of the property attached. It is argued that the attachment by Roys of Bhagyakul therefore, cannot stand in the way of Renuka's auction purchasing the property on 13.8.1955. Section 64 of the Civil Procedure Code does not apply in respect of sale and attachment. It is further argued that the attachment is neither a charge nor a lien in respect of the property attached. It is argued that the attachment by Roys of Bhagyakul therefore, cannot stand in the way of Renuka's auction purchasing the property on 13.8.1955. In a case reported in M. Marathachalam Pillai vs. Podmavathi Ammal, 1971 (3) SCC 878 , it has been held, inter alia, that when the property is attached in execution of a decree any private transfer of that property contrary to such attachment is by section 64 declared void as against all claims enforceable under the attachment. The court below held that in view of the fact that Roys attachment was prior to the attachment by Renuka though Renuka purchased Ramdas's share in the property which was under attachment by the Roys of Bhagyakul effected on 13.1.1952. In our opinion, the attachment by the Rays of Bhagyakul is of no consequence in view of the subsequent attachment followed by sale in Money Execution Case No. 15 of 1953 on 13.8.1955. The sale of 13.8.1953 having been held under Order 21, Rule 89 and being a Court side, section 64 of the C.P. Code has no application, more so when this attachment under section 64 of the Code of Civil Procedure does not create any lien or charge on the attached property. It has been held by the Full Bench of this Court in a case Frederick Peacock vs. Madan Gopal & others, AIR 1929 Cal. 428, that an attaching creditor did not obtain by his attachment any charge or lien upon the property. This position is also reiterated in Sankaralinga Reddy & other vs. Kanda Sami Tavan & other, ILR 30 Madras 513. It has been held that the attaching creditor does not acquire any charge on the attached property which would give him priority over other creditors claiming rateable distribution or over the general body of the creditors proving an insolvency of the judgment-debtor. He however acquires a right to have the property kept in custodia legis for the satisfaction of his debt. Referring to the judgment Frederick Peacock vs. Madan Gopal & others, AIR 1929 Cal. He however acquires a right to have the property kept in custodia legis for the satisfaction of his debt. Referring to the judgment Frederick Peacock vs. Madan Gopal & others, AIR 1929 Cal. 428, the court held, inter alia, that the attaching creditor does not, by the attachment, acquire priority over other creditors coming in later. The same view was also taken in Dhirendra Nath Ray vs. Kamini Kumar Pal, 28 CWN 899. It has bean held by this court in the said judgment that the attachment of the property in execution of a decree does not itself create in favour of the decree-holder any title to such property though it was held that the attaching creditor had an interest for maintenance on an application under Order 21, Rule 90 of Code of Civil Procedure. On a consideration of this decision it appears to us that the learned Judge of the court below has erred in holding that because the Roys of Bhagyakul had attached the property in question earlier than the attachment and sale of Ramdas's 1/3rd Share to Renuka the Roys got a priority over Renuka's right in respect of the alleged 1/3rd share purchased in the sale proceeding in execution of the Renuka's decree. The next question which arises for our consideration is what is the nature of the right of Renuka. Renuka purchased in the auction sale 1/3rd share of the property in dispute. Mr. Mitter contended that from Renuka the present appellant has got right, title and interest of the property sold in execution which was subsequently acquired under the L.A. Act. The sale, it is argued, though confirmed after the possession was taken by the Land Acquisition Collector, that does not make any difference. Mr. Ghosh Chowdhury contended that after the sale in auction was held but it was not confirmed, the purchaser from Renuka gets no title in respect of the property in question. Mr. Ghosh Chowdhury contended that the right which Renuka got in execution of a decree she had no transferable right at all as the sale was not yet confirmed and before the confirmation the property had vested in the State under section 16 or the Land Acquisition Act free from all incumbrances. 8. Mr. Das Gupta supporting this contention of Mr. Ghosh Chowdhury contended that the right which Renuka got in execution of a decree she had no transferable right at all as the sale was not yet confirmed and before the confirmation the property had vested in the State under section 16 or the Land Acquisition Act free from all incumbrances. 8. Mr. Das Gupta supporting this contention of Mr. Ghosh Chowdhury elaborated it and further contended that Renuka as auction purchaser has only an incoherent right and unless the sale is confirmed she would not acquire any title in respect of the property in question. The point for consideration, therefore, is what interest Renuka got by her purchase in the auction sale on 13.8.1955. In an execution proceeding, after the decree is put in execution and the property is attached under Order 21, Rule 54 the decree will not be satisfied unless the procedure as provided in Order 21, Rule 66 of the Code is followed for bringing the property to sale as provided in Order 21, Rule 64 of the Code. We are however not concerned in this case with the different steps which have been taken before the Court's order for sale of the attached immoveable property. The facts remain in the present case that the Court directed to sell the attached property and in fact the sale was held and the property was purchased by the decree-holder auction purchaser, Renuka on 13.8.1955. After the sale is held under Order, 21 Rule 82 read with Rule 84, the auction purchaser is required to deposit 25% of the amount of the purchase money. After such a deposit is made, the balance amount of the purchase money shall have to be deposited by the purchaser in the Court before the Court confirms the sale on the fifteenth day from the date of sale of the property under Order 21, Rule 85. Under Order 21, Rule 89 where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing the requisite amount in Court. Under Order 21, Rule 89 where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing the requisite amount in Court. Under Order 21, Rule 90 where any immovable property has been sold in execution of a decree, the decree-holder or any other person entitled to a share in the rateable distribution of the assets or whose interests are adversely affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. Under Order 21, Rule 91 the purchaser at tiny such sale in execution of a decree may apply to the Court for setting aside the sale on the ground that the judgment-debtor has no saleable interest in the property sold. Under Order 21, Rule 92 where no application is made under Rule 89, 90, or 91 or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. In section 65 of the Code of Civil Procedure it is provided that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. It appears that after the sale is held under Order 21, Rule 82 read with Rules 84 and 85, the auction purchaser acquires title in respect of the property but unless the sale is confirmed, the title does not become absolute. To get the absolute title what is required is the confirmation of the sale by the Court under Order 21, Rule 92. Under Order 21, Rules 89, 90 and 91, the person, who is entitled to make an application for setting aside the sale, is either the judgment-debtor or the auction purchaser or any person who has some interest in the property sold. The decree-holder may also apply for setting aside the sale. A person entitled to the share under section 73 can also apply for setting aside the sale. The decree-holder may also apply for setting aside the sale. A person entitled to the share under section 73 can also apply for setting aside the sale. It appears, therefore, to us that subject to the right of such person to let the sale set aside, the auction purchaser's right in respect of the property in question cannot be defeated. It has been held in the case reported in Ramaswami Iyer vs. Komalavlli Ammal, AIR 1941 Madras 277 that after the auction purchase, the purchaser has saleable interest in the property auction sold. The Division Bench of the Madras High Court considered the question whether after the auction purchase the judgment-debtor has still any saleable interest in the property sold though the sale has not yet been confirmed. Patanjali Sastri, J. (as His Lordship then was) speaking for the Bench held as follows. It is thus clear that a judgment-debtor whose property is sold does not cease to be its owner capable of selling it effectively under certain conditions, so long as he can apply to have the sale set aside, that is to say, till the expiration of thirty days from the date of sale. But what is the position after that period? Can he still dispose of the property so as to pass an effective title to the transferee against the auction-purchaser? In other words, has he a saleable interest in the property? Whatever could be said in support of an affirmative answer to this question if the matter were res integral we consider that the decision of the Privy Council in ILR 59 Madras 910 requires that it should be answered in the negative? Then referring to the judgment of the Privy Council Mr. Justice Patanjali Sastri, (as His Lordship then was) held as follows:- "After the expiry of the period for an application to set aside an auction sale, the auction-purchaser can effectively sell the property purchased even in the absence of a confirmation of the auction sale by the Court or in other words, that he has a saleable interest in the property. If he has acquired such interest it is difficult to see how the judgment-debtor can also be said to have a saleable interest in the same property, there being no question here of subordinate, interests carved out of the property being owned by different persons. It was urged by Mr. If he has acquired such interest it is difficult to see how the judgment-debtor can also be said to have a saleable interest in the same property, there being no question here of subordinate, interests carved out of the property being owned by different persons. It was urged by Mr. Sashagiri Sastri for the respondents that the above mentioned decision must be taken to have been based upon the rules made by the Local Government for the administration of the Agency tracts of the Madras Presidency as the property there in question lay within those tracts." Their Lordships further held that apart from Order 21, Rules 89, 90 and 91, the Court can set aside the auction sales under section 47 on other grounds and can also refuse to confirm such sales under its inherent powers, and that therefore it cannot be said that the auction-purchaser acquires an indefeasible title before confirmation. These cases proceed on the ground that the sale was either a nullity or was tainted by fraud on Court to which the purchaser was privy. In our opinion, their Lordships held that excepting coming under Order 21, Rules 89, 90 and 91, the judgment-debtor or any other person interested may apply to get the sale set aside and the auction purchaser's right is indefeasible and when the period for application for setting aside the sale is over, the judgment-debtor or any person having an interest to get the order of sale set aside becomes nonest and the auction purchaser's sale cannot be set aside and therefore he has the indefeasible saleable interest in the property sold in auction by the Court. It appears to us that after the period for application under Order 21, Rules 89, 90 and 91 is over, the confirmation of sale by the Court becomes, a formality and the Court has no option but to confirm the sale. 9. Mr. Das Gupta referred to the case reported in Navalkha & Sons vs. Ramanya Das, AIR 1970 SC 2037 and argued that the confirmation of sale is not a routine matter and the court has inherent jurisdiction not to confirm the sale. In our opinion, the said case is not a case under Order 21, Rule 92 but under Rule 73 of the Companies (Court) Rules. In our opinion, the said case is not a case under Order 21, Rule 92 but under Rule 73 of the Companies (Court) Rules. In the said case it was held that there was a defect in the confirmation of the sale itself as the confirmation was done on the wrong principles. Under Order 21, Rule 92 it is the duty of the Court to make an order confirming the sale. It is however true that the Court has inherent power even when there is no application to set aside the sale if there has been a fraud or irregularity the sale is nullity. In the present case that is not the case of the parties at all. Mr. Das Gupta relied upon the case reported in Raghunandan vs. Commr. Income-Tax, 1933 PC 101, in support of his contention. In the said case it has been held as follows:- "The answer of the Commissioner and of the High Court was that the profits must be deemed to have arisen on the confirmation of the sales, i.e. on 18.12.1925 and 21.12.1925, and their Lordships are of the same opinion. The decree is only a step towards realization, and the date of the decree is therefore plainly not the date of realization. Nor on the date of the sale does the purchaser obtain an indefeasible right, for under Order 21, Rules 89, 90 and 91 the sale may be set aside on various grounds. It is only where no application is made under these rules or such application is made and disallowed that the Court under Order 21, Rules 92, makes an order confirming the sale, whereupon the sale shall become absolute. It is then that the process of realization is completed and any profit or income is realized by the decree-holder. This is so whether the property is purchased by the decree-holder himself or by a third party, for the right of set-off conferred on the purchasing decree-holder must also be dependent on the sale being rendered absolute by confirmation. No doubt section 65 of the Code provides that." Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. No doubt section 65 of the Code provides that." Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. But this provision does not come into operation unless and until the sale has become absolute. The actual date of realization is not affected by this retrospective vesting of the property. The seventh question formulated by the Commissioner is as follows:- "7. Assuming that there are profits arising out of this transaction which are legally taxable lire the assesses entitled to deduct from these taxable profits expenses which are always entitled in taking delivery of possession and affecting mutation in the Collectorate Registers? Their Lordships agree with the Commissioner and the High Court that the expenses incurred by the assesses in completing their title and entering into possession after the sales had become absolute and not deductible by the assesses from their taxable profits." This case was considered by the Division Bench of the Madras High Court in Ramaswami Iyer vs. Komalavlli Ammal, AIR 1941 Madras 277, and the Privy Council case was distinguished by their Lordships in the following terms:- "Mr. Sashagiri Sastri placed reliance on 12 Patna 305 as showing that the title of a purchaser in court-auction becomes complete only on confirmation by Court. The case related to an income-tax assessment and the question was when the assesses, a money lender who had purchased certain properties of his judgment-debtor in execution for the amount payable to him under a decree could be said to have realized his debt. It was held that the interest on the debt could be deemed to have been realized only when the sale was confirmed. It was held that the interest on the debt could be deemed to have been realized only when the sale was confirmed. Their Lordships did not have to consider the position of a judgment-debtor in relation to the property sold in a court-auction after the expiry of the period prescribed for setting aside the sale where no confirmation follows, and the decision is no authority for the view that he has, in such circumstances, a saleable interest in the property." On the other hand the case reported in Jagannatha Rao vs. Surya Rao, 1936 PC 204, which deals with the case where the property was sold In court-auction of the Privy Council stated as follows:- "The question which their Lordships have to determine is whether the transaction of 29.11.1920, whereby the village in question became the property of the defendant, did or did not amount to a sale. That village, along with other mortgaged property, was, as stated, sold to the plaintiff on 28.10.1920, and the period, within which the judgment-debtor could apply to the Court for setting aside the sale was 30 days from the date of the sale. During that period no such application was made by him, and the title of the auction-purchaser became unimpeachable. It is obvious that, after the expiry of the statutory period for setting aside the sale, there was no person who could question the title of the auction-purchaser, and a certificate of sale granted by the Court would in such a case be a formal document of title. In the absence of an order setting aside the sale the Court is bound to confirm it, and the law does not prescribe any special period for an application for an order of confirmation." 10. In our view, therefore, it appears that after the sale is made as no application under Order 21, Rules 89, 90 and 91 is made at all in the present case, the auction-purchaser got an unimpeachable title in respect of the property. 11. Mr. Das Gupta further contended that Renuka did not get any title to transfer the property purchased and referred to the cases reported in V.P.R.V. Chocklingam Chetty vs. Seethai Ache, 32 CWN 281 and Nrisinha Charan Nandi Chaudhury vs. Nagendra Bala Deby, 37 CWN 14, in support of his contention. 11. Mr. Das Gupta further contended that Renuka did not get any title to transfer the property purchased and referred to the cases reported in V.P.R.V. Chocklingam Chetty vs. Seethai Ache, 32 CWN 281 and Nrisinha Charan Nandi Chaudhury vs. Nagendra Bala Deby, 37 CWN 14, in support of his contention. The case reported in V.P.R.V. Chocklingam Chetty vs. Seethai Ache (supra) which is a Privy Council case arises out of a sale by an Official Assignee of lands in possession of alienees from an insolvent who had sold them before his insolvency and it was held that the sales are nothing but sales of the mere right to litigate. It has been held, inter alia, that the sales by an Official Assignee of lands in possession who had sold them before his insolvency are, in substance, if not in form, nothing more than sales of the mere right to litigate and even if they may not come within the prohibition in the Transfer of Property Act against the transfer of a mere right to sue, they are open to the same objections. The case reported in Nrisinha Charan Nandi Chaudhury vs. Nagendra Bala Deby (supra) on which strong reliance was placed by Mr. Das Gupta as also by Mr. Ghosh Chowdhury is a case in which the ganti consists of the lands of a certain village named Rahara which appertains to seven amalgamated Tauzis of which Tauzi No. 188 is one. The respondents were the owners of the said Tauzi and were also gantidars in the lands of the said village, having a 3 as, gantidari interest under their Tauzi No. 188. For arrears of revenue defaulted on the 28.3.1925, the Tauzi was sold on the 18.9.1925. In pursuance of a Declaration, dated the 11.12.1924, some lands were acquired under the Land Acquisition Act. In respect of the lands concerned in Appeals Nos. 146, 147 and 148 the Collector made his awards and took possession on the 16.9.1925 and as regards the lands of Appeal No. 149 he did so on the 22.12.1925. In the awards so made, certain amounts were awarded to the Respondents as proprietors of the Tauzi, and some further amounts were awarded to them for their gantidari interest. 146, 147 and 148 the Collector made his awards and took possession on the 16.9.1925 and as regards the lands of Appeal No. 149 he did so on the 22.12.1925. In the awards so made, certain amounts were awarded to the Respondents as proprietors of the Tauzi, and some further amounts were awarded to them for their gantidari interest. The appellant, after his purchase at tae revenue-sale, applied to the Collector on the 3.10.1925, for a reference, with a prayer for allowing him to have all the amounts so awarded. The Judge, as already indicated, awarded the compensation for the proprietary interest to the appellant and that for the gantidari interest to the respondents. The appellants in these four appeals challenged the order of the learned Judge and claimed that the appellants to be awarded the compensation in respect of a ganti interest and also the respondents filed cross-objection in respect of the appeals which a warded to the appellants compensation on account of proprietary interest in the Tauzi. In so far as the Appeals Nos. 146, 147 and 148 are concerned it appears that the sale was held after the award made by the Collector and possession taken on 16.9.1925 and in so far as the Appeal No. 149 is concerned the sale was held before the award which was made on 22.12.1925. On these facts their Lordships held as follows:- "At the sale which took on the 18.9.1925, the appellant purchased the interest of the Crown in the lands of the Tauzi which were subject to the payment of the Government Assessment. By the awards that were made on the 16.9.1925, in the cases out of which Appeals Nos. 146, 147 and 148 have arisen, abatement of Government revenue was followed for the acquired lands from the kist previous to the date of taking possession; and so at the time of the sale the said lands were no longer subject to the payment of Government assessment and the capitalized value of the Government revenue due on them had already been realized under the award that had been made. The appellant never purchased the said acquired lands, though in respect of the lands that he purchased, his title on purchase related back to the default. In our opinion, therefore, the appellant cannot be regarded as having acquired any interest in the lands of Appeal Nos. The appellant never purchased the said acquired lands, though in respect of the lands that he purchased, his title on purchase related back to the default. In our opinion, therefore, the appellant cannot be regarded as having acquired any interest in the lands of Appeal Nos. 146, 147 and 148 by the purchase that he made. The late proprietors, that is to lay, the respondents, were entitled to the surplus of the purchase money under section 31 of Act XI of 1859 as regards the lands that were sold. They are, in our opinion, the persons also entitled to compensation for what could not be sold, the acquisition having taken place in the meantime. So far as these three appeals are concerned no question of annulment of the ganti arises, because the appellant never purchased the lands themselves. As regards Appeal No. 149 the award not having been made nor possession taken by the Collector till the 22.12.1925, and the sale having taken place on the 18.9.1925, the appellant purchased at the sale the lands which were subsequently acquired. He was, therefore, clearly entitled to the compensation in respect of the proprietary interest in the lands as lands of the Tauzi. On the 3.10.1925, he made the petition in which he claimed the compensation that was to be awarded for the ganti and thus signified his intention to annul the ganti. As he did so before the award was made and when the ganti was yet subsisting though liable to annulment at his option, he was entitled to get the compensation for the lands which the award, subsequently made divided into two parts, one for the proprietary interest and the other for the gantidari interest. His title as proprietor related back to the date of default, but the annulment could only operate from the date it was made." Mr. Das Gupta relied on this case and argued that similarly after the award has been made in the present case, the auction purchase by Renuka is of no consequence. His title as proprietor related back to the date of default, but the annulment could only operate from the date it was made." Mr. Das Gupta relied on this case and argued that similarly after the award has been made in the present case, the auction purchase by Renuka is of no consequence. In view of what has bean stated hereinbefore we are of the opinion that Renuka got the title in respect of the property subject to the confirmation by the Court and that confirmation was a mere formality than of substance, in view of the facts, no application under Order 21 Rules 89, 90 and 91 was made for setting aside the said sale. Relying on the Privy Council decision reported in Kundan Lal vs. Musharrafi, AIR 1936 PC 204, we are of the opinion that auction purchaser's title becomes unimpeachable after the statutory period for setting aside the sale and a certificate of sale granted by the Court would in such a case be a formal document of title and in the absence of an order setting aside the sale the Court is bound to confirm it and there is no law which prescribes a special period for the application for an order of confirmation. It has been held in the case reported in Nrisinha Charan Nandi Chaudhury vs. Nagendra Bala Deby, 37 CWN 14, that when the award was made and possession by the Collector was taken after the revenue sale, the auction-purchaser is entitled to the compensation in respect of the acquired land. In this case, in our opinion, after the sale has been made, the auction-purchaser purchased the property in the Court sale. The only interest he acquired in the property purchased is subject to the right of the judgment-debtor to get the sale set aside under the provisions of Order 21, Rules 90 or 91. Those are only clogs to the absolute title of the auction purchaser. That, in our opinion, is incumbent to the perfection of the title of the auction purchaser. Those are only clogs to the absolute title of the auction purchaser. That, in our opinion, is incumbent to the perfection of the title of the auction purchaser. After the possession is taken under section 16 of the Land Acquisition Act the clog is removed or in the other words the right of the judgment-debtor or the person having interest to get the sale set aside will no longer exist and the land will vest in the State but the right of the auction purchaser stands attached to the compensation money. The auction purchaser alone is entitled to the compensation money in lieu of the property acquired after the auction purchase. 12. Both Mr. Das Gupta and Mr. Ghosh Chowdhury however contended that after the vesting of the property in the State under section 16 of the Land Acquisition Act free from all incumbrances, whatever Renuka purchased was not yet confirmed by the court and as such Renuka gets no title in respect of the property in question. What was acquired is not the auction purchaser's property but the judgment-debtor's property and after the vesting it vests in the State free from all incumbrances. Mr. Ghosh Chowdhury relied on the case reported in Ramchandra Bhagat vs. Eva Mitra, AIR 1960 Patna 378, in support of his contention. Mr. Das Gupta also supported Mr. Ghosh Chowdhury's contention and relied upon the case reported in F & V Merchants Union vs. Improvement Trust, AIR 1957 SC 344 and Chotanagpure Banking Asson vs. Government of India, AIR 1957 Patna 666, in support of his contention. In the case reported in Ramchandra Bhagat vs. Eva Mitra, AIR 1960 Patna 378, the Division Bench of the Patna High Court held, inter alia, that if after the judicial sale of an estate or tenure and before its confirmation, such estate or tenure has become vested in the State under the Bihar Act the execution proceeding cannot be regarded as having terminated and is a proceeding pending on the date of vesting within the meaning of clause (d) of section 4 and therefore, the Court has no jurisdiction to proceed further with the execution proceeding. The legal consequence of this vesting is that the proceeding must be dropped. Such a case also comes under clause (e) of section 4 of the Bihar Land Reforms Act. The legal consequence of this vesting is that the proceeding must be dropped. Such a case also comes under clause (e) of section 4 of the Bihar Land Reforms Act. Their Lordships of the Patna High Court were considering the effect of section 4 (d) and (e) of the Bihar Land Reform Act which has been quoted in paragraph 5 of the said judgment which is as follows:- "(d). No suit shall lie in any Civil Court for the recovery of the money due from such proprietor or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of such money which may be pending on the date of vesting shall be dropped. (e) No such estate or tenure shall be liable to attachment or sale under the processes of any Court and any order of attachment passed in respect of such estate or tenure before the date of vesting shall cease to be in force." 13. Their Lordships held that the execution proceeding cannot continue in view of this particular provision of the Bihar Land Reforms Act. It must be stated that under the Bihar Land Reforms Act, all the estates and tenure shall be vested in the State by the operation of law and all the execution proceedings under section 4(d)(e) have been specifically stated as shall be dropped. In interpretation of the said section, in our opinion, the Division Bench of the Patna High Court held that the confirmation proceeding which is also a part of the proceeding shall be dropped. In a case reported in F & V Merchants Union vs. Improvement Trust, AIR 1957 SC 344 , the Supreme Court stated that under sections 16 and 17 of the Land Acquisition Act the property so acquired upon the happending of certain events, shall vest absolutely in the Government free from all encumbrance. In the cases contemplated under sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. There cannot be any dispute about the proposition of law. In the cases contemplated under sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. There cannot be any dispute about the proposition of law. The dispute is whether the appellant herein has acquired any right by means of an auction purchase in respect of the compensation money though the auction purchase was not confirmed and before the confirmation, the property has vested in the Government free from all encumbrances. The case reported in Chotanagpure Banking Asson vs. Government of India, AIR 1957 Patna 666, on which Mr. Das Gupta relied is to the same effect. It has been stated that no title thereafter is left to the ex-owner of the land acquired. In the present case the judgment-debtor was an ex-owner of the land acquired and no title is left to him after the auction purchase by the decree-holder but he had only the right to annul the purchase by a proceeding under Order 21, Rules 89, 90 and 91. But the question before us is not the right, title and interest but the right, title and interest of the parties concerned with the property before the vesting. In this case we have already stated that the auction purchaser had a right, title and interest to the 1/3rd share in the property which was purchased in auction sale in execution of a decree before the vesting of the property in the State under section 16 of the Act. In the case reported in Janak Raj vs. Gurdial Singh, AIR 1967 SC 608 , it has been held that the plaintiff obtained an ex-parte decree, against the defendant and in execution of an ex-parte decree a warrant for the attachment of a house belonging to the judgment-debtor wag issued. At the sale which took place, the appellant became the highest bidder. On 2.1.1962 the judgment-debtor made an application to set aside the ex-parte decree on the ground that the house was valued at Rs. 25,000/- only and the sale was not conducted in a proper manner. By an order dated 19.4.1962 the execution Court stayed the execution of the decree till the disposal of the application for setting aside the ex-parte decree. On 26.10.1962 the ex-parte decree against the judgment-debtor was set aside. 25,000/- only and the sale was not conducted in a proper manner. By an order dated 19.4.1962 the execution Court stayed the execution of the decree till the disposal of the application for setting aside the ex-parte decree. On 26.10.1962 the ex-parte decree against the judgment-debtor was set aside. On 3.11.1962 the auction purchaser made an application for revival of the execution proceedings and for confirmation of the sale under Order 21, Rule 92 of the Code of Civil Procedure whereupon an objection was filed by the judgment-debtor contending that the application was not maintainable after setting aside the ex-parte decree and the executing Court overruled the objection of the judgment debtor and made an order under Order 21, Rule 92 confirming the sale. This was affirmed by the first appellate Court. But on a second appeal to the High Court the Division Bench dismissed the appeal whereupon the appeal was taken to the Supreme Court. In paragraphs 4, 5 and 6 of the said judgment the Supreme Court held as follows:- "4. Before referring to the various decisions cited at the bar and noted in judgment appealed from, it may be useful to take into consideration the relevant provisions of the Code of Civil Procedure. So far as sales of immovable property are concerned, there are some special provisions in Order 21 beginning with Rule 82 and ending with Rule 103. If a sale had been validly held, an application for setting the same aside can only be made under the provisions of Rules 89 to 91 of Order 21. As is well known, Rule 89 gives a judgment-debtor the right to have the sale set aside on his depositing in Court a sum equal to five per cent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less tiny amount which may, since the date of sale have been received by the decree-holder. Under sub-rule (2) of Rule 92 the Court is obliged to make tin order setting aside the sale if a proper application under Rule 89 is made accompanied by a deposit within 30 days from the date of sale. Under sub-rule (2) of Rule 92 the Court is obliged to make tin order setting aside the sale if a proper application under Rule 89 is made accompanied by a deposit within 30 days from the date of sale. Apart from the provision of Rule 89, the judgment-debtor has the right to apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it provided he can satisfy the Court that he has sustained substantial injury by reason of such irregularity or fraud. Under Rule 91 it is open to the purchaser to apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. Rule 92 provides that where no application is made under any of the rules just now mentioned or where such application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 94 provides that where the sale of immovable property has become absolute, the Court must grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be the purchaser. Such certificate is to bear date the day on which the sale becomes absolute. Section 65 of the Code of Civil Procedure lays down that were immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchase from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchaser's title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under Order 21 or elsewhere which provides that the sale is not be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale. 5. There does not seem to be any valid reason for making a distinction between the two cases. It is certainly hard on the defendant-judgment-debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld. Once, however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rules 89 to 91 of Order 21, or when any application under any of these rules is made and disallowed the Court had no choice in the matter of confirming the sale and the sale must be made absolute. 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 21 or in Part II of the Code of Civil Procedure of 1908 which contains sub-sections 36 to 74 (inclusive). 6. 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 axing 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 in cases like these a sale can only be set aside when an application under Rule 89, 90 or 91 of Order 21 has been successfully made." It was further held that the Court is bound to confirm the sale or direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application as is referred to Rule 92 is made or when such application is made and disallowed. In our case, as we have already held that the confirmation of sale was not made after the sale was held and it was not challenged under Order 21, Rules 89, 90 and 91, it does not affect the auction purchaser at all. Only in execution of a decree the sale was held but due to the stay order granted by the Court at the instance of the trustees the confirmation was delayed. Moreover, under the order of the High Court in an appeal taken by Nilmani and others alleged to be trustees under the Trust Deed, it was ordered (Vide Ext. 6-A) as follows:- As the sale has already been held, we see no point in restraining the opposite party from proceeding with an application for confirmation of sale. It must be stated that the order was passed on 17.5.1957 and consequently confirmation order was made on 17.8.1957 by the Court below. The next point which arises for our consideration is whether the Roys of Bhagyakul who purchased the property attached in 1952 and purchased the interest of the judgment-debtor on 15.4.1957 in Money Execution Case No. 22 of 1951 of the Second Sub Judge's Court for a sum of Rs. 85,200/-. What is the nature of the right of Roys of Bhagyakul by means of a purchase made by them. 14. Mr. Mitter contended that the sale in execution of a decree of the right, title and interest of the judgment-debtor in the property acquired for a sum of Rs. 85,200/- is not a nullity even if it is found that the judgment-debtor has no title to it. To this argument of Mr. Mitter, Mr. Ghosh Chowdhury supported Mr. Mitter's contention. Mr. Das Gupta however contended that by purchase in the auction sale the Roys purchased the substantial interest in the compensation money. Mr. 85,200/- is not a nullity even if it is found that the judgment-debtor has no title to it. To this argument of Mr. Mitter, Mr. Ghosh Chowdhury supported Mr. Mitter's contention. Mr. Das Gupta however contended that by purchase in the auction sale the Roys purchased the substantial interest in the compensation money. Mr. Das Gupta however contended that by purchase of the judgment-debtors interest for a sum of Rs. 85,200/- the decree-holder could not realize anything because by the time the property has already vested in the State under section 16 of the Land Acquisition Act and he is entitled therefore to the said money cut of the 1/3rd share of the judgment-debtor. If the purchase is to be accepted to be effective then the Roys of Bhagyakul has got right, title and interest of the judgment-debtor in respect of their 2/3rd share of the compensation money but in our opinion in this score, Mr. Das Gupta is not right. Knowing fully well that the property has vested, in the State under section 16 of the Act, the decree-holder proceeded with the execution case under Order 21, Rule 51 find purchased the right, title and interest of the judgment-debtor in respect of the property already vested in the State. There is no doubt that the decree-holder Roys can make a claim out of the compensation money for the balance of the decreetal dues except the sum of Rs. 85,200/- which sought to be realized in an auction sale by purchases of the judgment-debtor's right, title and interest in respect of the 2/3rd share of the property. Mr. Das Gupta contended that by the purchase in auction sale on 15.4.1957 Rays of Bhagyakul purchased a substantial interest. It must be stated that the possession of the property under section 16 of the Act was taken on 27.3.1955 and the property had vested in the State free from encumbrances from that date. Mr. Das Gupta relied upon the case reported in V. Macha Koundan vs. V.K. Kotara Koundan, AIR 1959 Madras 202, in support of his contention. It is argued by Mr. Das Gupta that the Rays of Bhagyakul, the decree-holders, did not get the property at all. They are entitled to recover the purchase money of the decree-holder. Mr. Das Gupta relied upon the case reported in V. Macha Koundan vs. V.K. Kotara Koundan, AIR 1959 Madras 202, in support of his contention. It is argued by Mr. Das Gupta that the Rays of Bhagyakul, the decree-holders, did not get the property at all. They are entitled to recover the purchase money of the decree-holder. In the said case a question arose whether he can do it in an execution proceeding under section 47 or by a properly framed suit. The Madras High Court held that the auction purchaser can recover the purchase money by a separate suit. It has been held that where the decree was not set aside, the auction purchaser would have no remedy for getting a refund of the purchase money even in a separate suit under Order 21, Rules 89, 90 and 91 of the Code of Civil Procedure. The case reported in Prasanna K. Bhattacharj vs. Ibrahim Mirza, 36 CLJ 205, on which Mr. Das Gupta relied is one where the plaintiff purchased a certain occupancy holding in execution held under a decree sounded on a mortgage. It has been held that if the judgment-debtor had no saleable interest in the said property, he can recover the purchase money paid by him to the decree-holder. In a case reported in Chaitanya Das Banerjee vs. Ranjit Pal Chowdhury, 67 CLJ 16, it has been held as per Mukherjee, J. that an auction purchaser has got to set aside a sale under the provision of Order 21, Rule 91 of the Code of Civil Procedure before he can apply for a refund of the purchase money under Order 21, Rule 93 of the Code of Civil Procedure. The right to recover the purchase money by a suit on the ground that the judgment-debtor has no saleable interest in the property sold has been taken. In that view of the matter, in our opinion, unless the sale is set aside, the decree-holder cannot claim the sum of Rs. 85,200/- by which he has purchased the right, title and interest of the judgment-debtor in 1957. In the meantime the property had already vested in the Government under section 16 of the Act free from all encumbrances. The case reported in Reshikesh Laha vs. Manik Molla, 53 Cal. 758: AIR 1926 Cal. 971. 85,200/- by which he has purchased the right, title and interest of the judgment-debtor in 1957. In the meantime the property had already vested in the Government under section 16 of the Act free from all encumbrances. The case reported in Reshikesh Laha vs. Manik Molla, 53 Cal. 758: AIR 1926 Cal. 971. It must be stated that the Roys' decree should be deemed to have been satisfied to the extent of Rs. 85,200/- in view of the fact, they themselves, purchased the judgment-debtor's interest for a sum of Rs. 85,200/- while the execution was for Rs. 2,17,679/-. 15. Mr. Das Gupta and Mr. Ghosh Chowdhury both contended that the predecessor-in-interest of the present appellant by purchase from Renuka has only purchased the mere right to sue and therefore it cannot be transferred under section 6(1) of the Transfer of Property Act. The right to litigate is not transferable. In our opinion, however, the right, which Renuka has got and consequently by transfer the appellant has got, is not only the right to sue but the right to the property itself purchased in auction. The case reported in V.P.R.V. Chocklingam Chetty vs. Seethai Ache, 32 CWN 281, is clearly distinguishable on fact. What happened in that case was that the insolvent sold the property and put the transferees in possession. The Official Assignee transferred the right, title and interest of the insolvent to another third party. The Privy Council held that the Official Assignee had only sold the right, title and Interest of the insolvent and therefore the transferees from the Official Assignee only got the right to sue as against the Assignee who was in possession by means of a transfer by the insolvent. We are of the opinion that the decree-holder has got a substantial interest in respect of the property purchased. The point taken by Mr. Ghosh Chowdhury was based on Order 21, Rule 58. In our opinion, it appears, however, that the petition under Order 21, Rule 58 was filed at the instance of the trustees. Apart from the facts, the trust was not binding, the said petition under Order 21, Rule 58 was dismissed even before the sale was held at the instance of Renuka on 13.8.1955. The said petition was dismissed on 3.1.1955. It has been held in the case reported in Sasthi Charan Biswas Bani vs. Gopal Chandra Shaha, AIR 1937 Cal. Apart from the facts, the trust was not binding, the said petition under Order 21, Rule 58 was dismissed even before the sale was held at the instance of Renuka on 13.8.1955. The said petition was dismissed on 3.1.1955. It has been held in the case reported in Sasthi Charan Biswas Bani vs. Gopal Chandra Shaha, AIR 1937 Cal. 390: 41 CWN 845, that it seems to us having regard to the relevant provisions, that the stage at which a claim is to be preferred under Order 21, Rule 58, is intended to be a stage before the sale has actually been held and the attachment is pending. It is open to the Court under sub-rule (2) Rule 58, to postpone the safe, pending investigation of the claim. After the sale is held, Order 21, Rule 58 has no application. Coming to the facts of the case it appears that the lands acquired are as follows:- "Mouza Uttarpara J.L. No. 12, P.S. Uttarpara, District Hooghly. C.S. Plot No. Class Area 702 Bhiti .216 706 Bastu .656 707 Tank 1.313 708 Tank 2.223 709 Bagan .711 711 Bastu .164 712 Bastu .543 719 Pukurpar .052 720 Bhiti .043 2661 Dhanga .031 Total = 5.952 Acres." In the sale certificate by which the predecessor-in-interest of the present appellant purchased 1/3rd share the properties which are as follows:- "Dag Class Remarks Area 706 Bastu (Homestead) Building 656 Mill 707 Tank Khirki Puskarini 1.313 Mill (Tank at the back of the house) and one privy 708 Do ------- 2.223 Mill 709 Garden ------- .711 Mill 711 Bastu (Homestead) Buildings-2 .164 Mill 712 Do Buildings-4 .543 Mill 2501 Dhanga (High land) ------- .31 Mill Total = 5.641 Mill." The 1/3rd share of Ramdas was sold to the present appellant by Renuka Devi on 14.10.1955. Therefore the present plaintiff is entitled to 1/3rd share of the award money in favour of Ramdas in respect of the properties sold and purchased in Money Execution Case No. 15 of 1953. In view of our findings, therefore, the appeal in so far as the present appellants are concerned is allowed in full. In so far as the cross-objection filed by Tapan Kumar Mukherjee is concerned, we are of the opinion that the cross-objection will be allowed to the extent that the Roys of Bhagyakul will only be entitled to Rs. 1,32,479/- as their decree for Rs. In so far as the cross-objection filed by Tapan Kumar Mukherjee is concerned, we are of the opinion that the cross-objection will be allowed to the extent that the Roys of Bhagyakul will only be entitled to Rs. 1,32,479/- as their decree for Rs. 2,17,679/- was satisfied to the extent of Rs. 85,200/- in view of sale in money execution Case No. 15 of 1953 held on 17.8.1957. The cross-objection by the United Bank of India is however dismissed as the appellant, Indumati the predecessor-in-interest is poly entitled to 1/3rd of the prices in respect. of the properties measuring 5.641 acres of land out of the acquired lands 5.952 acres it will be necessary to remit the case back to the Land Acquisition Judge for apportionment of the valuation in respect of the different plots which were purchased and thereafter the apportionment out of the share of Ramdas United Bank of India's claim as mortgagee, Rs. 8128/9/6 should be paid first and thereafter out of the remaining portion, the present appellant will be entitled to 1/3rd share of the total valuation on basis of the purchase from Renuka in respect of the properties which were the subject-matters of the sale, being Item Nos. 1 to 7 of the sale certificate. They will have no claim in respect of 3 plots which were not the subject-matters of the sale, that is, Plot Nos. 719, 720 and 702. The award in respect of these plots and further awarded money will be apportioned between the United Bank of India. Roys of Bhagyakul and Tapan Kumar Mukherjee. We, therefore, have to remand the case back for apportionment to the Land Acquisition Judge Hooghly, for the aforesaid purpose and for disposal of the case in accordance with the directions hereinbefore given. 16. In the result, the appeal succeeds. The cross-objection of Tapan Kumar Mukherjee succeeds in part and that of United Bank of India is dismissed. There will be no order as to costs in all matters. 17. After apportionment case is decided by the learned Land Acquisition Judge, if any party be found to have withdrawn more than what he is entitled to, the excess amount must be refunded within such time as may be fixed by the learned Judge of the Court below.