T. N. SINGH, J. ( 1 ) SATTE-PE-SATTA or double wager of the auction-purchaser, it is seriously complained by appellants, has perverted judicial process. He has withdrawn the purchase-money. Decree-holder has been paid off. Why auction-purchasers' unjust enrichment must take place under a defunct judicial writ ? ( 2 ) CONTENTIONS aforesaid are pivotal and common to the decision to be rendered in the two appeals and indeed for the self-same reason the appeals are heard analogously though the older one, S. A. No. 107 of 1975, raises other important questions of law also and is, therefore, being treated first. It arises out of a suit, instituted on 3-5-65, praying, inter alia, for a declaration that the house "shobha Bhawan" attached in Execution Case No. 67 of 1960 of the court of Civil Judge, Morena, was not liable to be sold in public auction and that attachment and auction sale of that house were illegal, inoperative in law and void. ( 3 ) DURING last twenty-seven years of travail the journey which parties have made to his court was not made on boulevard only. Lanes and alleys which parties crossed are to be revisited also for appreciating and disposing of rival contentions. The appeals were heard in part, in instalments, and on 22-7-1987, relying on Apex Court's rulings when oral prayer was made for an opportunity being given to make appropriate application to bring on record relevant facts, I had no hesitation to grant the prayer. However, I directed copies of any document filed to be served on respondents' counsel and an opportunity to file reply was also given. From both sides have come, accordingly, on record, facts and chansmatic events in the form of additional evidence, comprising mainly of records of judicial proceedings. Indeed, documents filed by appellants' counsel are certified copies of applications made and orders passed in execution proceedings. ( 4 ) ALTHOUGH I have taken on record documents filed on both sides it is still necessary to note that respondents, though filing and relying themselves on certain documents, objected to the exercise undertaken by the appellants on the ground that O. 41, R. 27 C. P. C. did not sanction such a course. Few words I propose to speak first to say that the objection has no merit. Few words I propose to speak first to say that the objection has no merit. The shortest possible way to dispose of the objection is to underline the constitutional imperative of reading R. 27 in the context of R. 33 of O. 41. It is the constitutional duty of the appellate Court to effectuate fully the legislative intent underlying R. 33, which contemplates relief to be given in appeal to be moulded to suit circumstances obtaining on the date of disposal of the appeal to do complete justice to parties on the one hand and to curtail circuity and prolixity of litigation on the other hand. The language of R. 33 is wide enough to contemplate conferment of adequate power on appellate Court "to pass any decree and make any order which ought have been passed or made and to pass or make such further or other decree or order as the case may require". The amplitude of appellate Court's power contemplated under Cl. (b) of R. 27 (1) must, ex hypothesi, be given full scope to operate. The last. portion of the sub-rule with cl. (b) is as follows :" (B) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. "the appellate court is obviously mandated to ask parties to produce any documents or witness if the court is of the opinion that such evidence may "enable it to pronounce judgement" to do complete justice between the parties, to their causes and cases. Indeed the residuary clause - "for any other substantial cause" - amply manifests this intention of the Legislature. ( 5 ) IN taking the above view I would also rely on Art. 39-A of the Constitution which ordains in the country a just legal order and imposes a duty on Courts to control pending proceedings in such manner as may curtail life of litigation. ( 5 ) IN taking the above view I would also rely on Art. 39-A of the Constitution which ordains in the country a just legal order and imposes a duty on Courts to control pending proceedings in such manner as may curtail life of litigation. If it appears to the appellate Court that subsequent events have a material bearing on rights of parties, for satisfactorily adjudication of the dispute between them and to bring a fair and speedy end to litigation between them, it becomes the duty of the Court to receive "additional evidence" in such a case as it would be a "substantial cause" for which such a course can be, and has, to be adopted by the appellate Court. The view I have taken receives support from a recent decision of the Apex Court in the case of Kanaya Ram, AIR 1985 SC 371 wherein their Lordships held that when circumstances so warrant, the Court is "bound to take into consideration subsequent events and mould the relief accordingly".( 6 ) NOW, few facts to narrate the story from the beginning in its essential outlines. Plaintiffs/appellants stated in their plaint that their common ancestor was one Shobharam who had constructed the suit house "shobha Bhawan" at Morena, which they valued at Rs. 50,000/ -. Shobharam died at Agra in 1939, leaving behind his son Gulabchand and widow of pre-deceased son Jaichand, Dhanwantibai by name, who was impleaded as a defendant in the suit. The family was governed by Banaras School of Mitakshara system of Hindu Law. Gulabchand died in the year 1963. During his lifetime, an ex parte money decree was passed in favour of defendants Nos. 6 and 7 by Additional District Judge, Guna, in Civil Suit No. 2 of 1959, for a sum of Rs. 6,612-2-6 with costs, jointly against Gulabchand, and his three sons Dhannalal, Shantilal and Hukam Chand. That decree was transferred to Morena Court wherein Execution Case No. 67 of 1960 was started and the suit house was attached on 31-3-1962. Dhanwantibai, above-named, filed objection to attachment and by an order passed in M. C. C. No. 9 of 1964, pending disposal of her objection, confirmation of sale was stayed though auction was not stayed. On 28-10-1964, Shriram, since deceased, made a bid of Rs. 36,000/-, which was accepted and the bid money was accordingly deposited. Dhanwantibai, above-named, filed objection to attachment and by an order passed in M. C. C. No. 9 of 1964, pending disposal of her objection, confirmation of sale was stayed though auction was not stayed. On 28-10-1964, Shriram, since deceased, made a bid of Rs. 36,000/-, which was accepted and the bid money was accordingly deposited. ( 7 ) THE present suit, out of which this appeal arises, was instituted on 3-5-1965 by Ravindranath and Virendra Kumar, two sons of late Gulabchand and his grandsons, including sons of Dhannalal, Shantilal and Hukamchand. Stay of confirmation of sale was obtained in suit which has since continued though the objection of Dhanwantibai was rejected on 5-5-1965 by the Executing Court. On 16-7-1965, the auction-purchaser made an application to the Executing Court for refund of the bid-money, submitting that he would deposit the amount when asked by the Court after the temporary injunction order in the suit was vacated and sale was confirmed. In that application, his further prayer was that he be allowed to make up deficiency in price in the event of re-sale of the property. On behalf of the decree-holders the prayer was opposed, submitting that after sale the auction-purchaser was entitled in law only to a sale certificate and the conditional refund was not contemplated in law. However, the objection was rejected and on 4-5-1966, the Executing Court passed an order granting the prayer, allowing a partial refund of Rs. 28,000/ -. ( 8 ) THE second application which the auction-purchaser made to the Executing Court on 28-10-1967 has greater significance. In this, he raised the contention that the Court could not hold back the balance amount of Rs. 8,000/- when security was furnished for the entire amount of Rs. 36,000/ -. His second contention was that if no interest was created in his favour in Shobha Bhawan, on the basis of the sale, he was entitled to refund of the balance amount even on that footing. The Executing Court had made order for deposit in court of the rent payable by tenants in occupation of the suit house though from the order passed on 4-5-1966, it appears that the auction-purchaser had made a prayer in terms of R. 95 O. 21, C. P. C. which, if allowed, could have entitled him to claim rent from the tenants. The judgement-debtors filed an application in the Executing Court on 18-3-1969, submitting that an agreement had been reached between them and decree holders by which the decree -holders had to be paid Rs. 6,250/- out of Rs. 9,000/-, the rental income of the suit house lying in deposit in the Court. On 24-7-1969, the judgement-debtors filed reply to the objection of auction purchaser, stating that the decree-holders had been paid Rs. 7,900/- and no objection to that could be taken as the auction-purchaser was not entitled to claim that amount because there was no decree in his favour and the sale had not been confirmed. In the same reply, it was further submitted that the auction-purchaser having taken back Rs. 28,000/- of the bid-money, he had last interest in the suit house and the attachment was liable to be terminated. The judgement-debtors further stated that they had no objection to the refund to the auction-purchaser of the balance amount of Rs. 8,000/- but the attachment be terminated as the decree had been satisfied. ( 9 ) ON 29-9-1970, the decree-holders applied to the Executing Court to record satisfaction of the decree, submitting that in terms of the compromise, they had received the full payment of the decretal dues and they had agreed to the suit house to be released from attachment. On the same date, a joint application under O. 21 R. 2, C. P. C. was also made to the Executing Court by decree -holders and judgement-debtors, wherein it was recorded that the decree-holders had been paid earlier a sum of Rs. 7,900/- and a further sum of Rs. 1,100/was being paid in cash in the Court on that date in full satisfaction of the claim of the decree-holders. Parties jointly prayed for recording satisfaction of the decree and for release of the attached property. On 7-7-1971 another application was made by the auction-purchaser to the Executing Court of which in para 6, he stated that the decree had been fully satisfied and an order to that effect had been passed by the court on 29-7-1970 and there was no cause, therefore, to refuse to refund to him the balance amount of Rs. 8,000/ -. The fact which is not denied is that on 2-9-1971, the refund prayed for was allowed and the amount was withdrawn by the auction-purchaser. 8,000/ -. The fact which is not denied is that on 2-9-1971, the refund prayed for was allowed and the amount was withdrawn by the auction-purchaser. The important question that would, therefore, arise in this case is what stake, if any, of the auction-purchaser (main respondent in this appeal) remained in the pending lis and whether, after abandoning his rights, he could still oppose to claim of the plaintiff-appellants. Indeed, the undisputed fact is also that today when the appeal is being disposed of, there is no bid-money in deposit in Court. The auction-purchaser has been playing hide and seek with the Court. He had withdrawn, redeposited and again withdrawn the bid-money. Between 2-9-71 and 17-3-75, there was no deposit of bid-money in court though for a short spell of a month or so there was redeposit but today the auction-purchaser does not have even a copper's stake in the lis. ( 10 ) THE legal representatives of the auction-purchaser have filed typed copies of an application dt. 5-10-1970 made by the auction-purchaser to the Executing Court as also order of that court, dt. 10-2-1971 and the appellate order dt. 1-5-1972. A copy of this Court's order passed on 3-4-1974 in Misc. Appeal No. 72 of 1972 confirming first appellate Court's order dt. 1-5-1972 is also filed. After this court's order in the same matter, on 20-9-1974 the Executing Court, and on 24-2-1975 the first appellate Court again passed orders in the matter and once again the matter came to this Court in Misc. Appeal No. 64 of 1975, which was disposed of on 18-3-1986 as abated. The overlapping of applications has certainly caused some confusion and I have no doubt about this fact. I have also no doubt that nothing turns on anything that happened at several stages of the proceedings in the matter initiated on the application dt. 5-10-1970 made by the auction-purchaser. In his application, the only objection of the auction-purchaser was against release of the suit house from attachment on the ground that by satisfaction of the decree, the right and interest created in the auction-purchaser could not be defeated. Accordingly, he merely prayed for rejecting the prayer for releasing the property from attachment. Indeed, he never resiled from the stand that the decree had been satisfied which fact he accepted on 5-10-1970 and also more categorically on 7-7-1971. Accordingly, he merely prayed for rejecting the prayer for releasing the property from attachment. Indeed, he never resiled from the stand that the decree had been satisfied which fact he accepted on 5-10-1970 and also more categorically on 7-7-1971. The judgement-debtors had not indeed received or withdrawn any money deposited in Court by tenants by which the decree was satisfied without any objection on the part of the auction-purchaser. Accordingly, even if the Executing Court or the Appellate Court made any order against the decree-holder ordering him to refund the amount, paid to him under its order, that would not alter the position in law for the simple reason that the amount was paid to the decree-holder and till today he had not refunded the same and the decree must be deemed to have been satisfied by act of parties. What is only to be emphasized is that by subsequent order passed on 10-2-1971 the Executing Court could not review suo motu, to the detriment of the judgement-debtor and decree-holder, its earlier order passed on 29-9-1970 recording satisfaction of the decree. That being the position, the subsequent proceedings as regards the same matter in respect of which several orders were passed subsequently at different stages by the first appellate Court as also this Court, would not affect decree-holders' right or even the rights of the judgement-debtors. ( 11 ) A word may, however, be still said about the order passed on 3-4-1974 by this Court in Misc. Appeal No. 72 of 1972 because this Court purported by that order to dispose rather an application of the judgement-debtors for refund of the amount lying in deposit in Executing Court, taking the view that the judgement-debtors would not be entitled to the rent deposited in court if the sale was confirmed and that there being a temporary injunction in the instant suit against confirmation of the sale, the prayer of judgement-debtors was rightly refused by the Court below. This Court was not accordingly, required at any stage to upset Executing Court's order dt. 29-9-1970 and indeed, this Court did not even confirm the direction of the Executing Court or of the first appellate Court against the decree-holders asking them to deposit the sum in Court which was paid to them. This Court was not accordingly, required at any stage to upset Executing Court's order dt. 29-9-1970 and indeed, this Court did not even confirm the direction of the Executing Court or of the first appellate Court against the decree-holders asking them to deposit the sum in Court which was paid to them. ( 12 ) ON admitted aforesaid facts, the situation which obtains today in this case has projected several important questions of law for decision. Let it, however, first be considered if there is any live and effective sale of the suit property in favour of the auction-purchaser/respondents in respect of which he has a right to apply to the court under R. 92 of O. 21 for an order of confirmation. If the auction-purchaser has lost the right by operation of law or has abandoned his right, the relief claimed in the suit cannot be refused and the suit has to be decreed. I extract, therefore, relevant sub-rules (1), (4) and (5) of R. 92, albeit in its amended form because no saving in respect of old R. 92 is contemplated under S. 97 (2) (q) of C. P. C. (Amendment) Act, 1976 :"92. Sale when to become absolute or be set aside.- (1) Where no application is made under R. 89, R. 90 or R. 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 : provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property the Court shall not confirm such sale until the final disposal of such claim or objection. (4) Where a third party challenges the judgement-debtor's title by filing a suit against the auction-purchaser the decree-holder and the judgement-debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree holder to refund the money to the auction purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree holder to refund the money to the auction purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered. ( 13 ) PROVISO aforequoted of R. 92 (1) clearly envisages that pending disposal of "any claim" to any attached property or of "any objection" to the attachment of the property the right of the auction-purchaser in the property sold remains imperfect and inchoate, liable to be defeated by intervening events. Indeed, only when there is a live and effective "sale" operative on the date on which the "claim'' or "objection" is disposed of, such a "sale" can be confirmed. The legal position, that till such time only as the purchase money remains deposited in court in accordance with Rr. 85 and 86 of O. 21 there can be said to be subsist a valid and operative sale, according to me, is not disputable. I say so because the provisions are mandatory and inexorable, being saddled with specified penalties by which the auction purchaser's right is circumscribed and can be irredeemably defeated. While under R. 85 the time-limit for making deposit of the full amount of purchase-money is specific the severe penalty prescribed in Rule 86 has to be read in legislature's own language, which I quote :"86. Procedure in default of payment.- In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. " ( 14 ) THE Court has the power to forfeit any payment made by the auction-purchaser when Rule 85 is breached by him and has of course the discretion to exercise that power judicially in such manner as it thinks fit, but what the court cannot do is also clear. The default automatically terminates the "sale" and makes the property auctioned liable to be "re-sold". The default automatically terminates the "sale" and makes the property auctioned liable to be "re-sold". In that regard and to that extent the court has no power to condone or relieve the default. Because, the event when the "property shall be re-sold" is statutorily fixed. Indeed, the court has no power to make any order for return or refund of the purchase money deposited, reserving the right of the auction-purchaser to the confirmation of the "sale" when that ceases to subsist and operative as a result of R. 85 being breached. If and when, in any case, the auction -purchaser applies to the court for return or refund of the purchase-money which he had deposited to fulfil the requirement of R. 85, his act would tantamount to abandonment of his right to confirmation of "sale" as neither in fact nor in law there would be any "sale" subsisting when the prayer is allowed and the amount is withdrawn. That any right accrued to the bidder at any auction is defeasible, is indicated clearly in R. 84 itself : any default to deposit "immediately", when the sale is knocked down, twenty-four per cent of the bid money, renders the property liable to be resold "forthwith". There is no doubt that under R. 92 the right to confirmation of any "sale" that can been forced is a right in respect of a legally and factually subsisting "sale". Indeed, no substantive right accrues to the auction-purchaser on his being merely "declared" as the "purchaser" at the auction in terms of R. 85; there has to be an effective, valid, complete and subsisting sale in respect of which only the right of confirmation under R. 92 is contemplated and can be claimed and enforced. ( 15 ) IN the instant case, on the admitted facts, breach of R. 84 incurred by the auction purchaser/respondent on 4-5-1966 was irredeemably completed on 2-9-1971 when he took back in full the purchase-money and indeed accepting the position that the decree had been satisfied. Indeed, he was conscious of the legal position that until the sale was confirmed, the possibility or contingency of "re-sale" remained. In his first application for refund (dt. Indeed, he was conscious of the legal position that until the sale was confirmed, the possibility or contingency of "re-sale" remained. In his first application for refund (dt. 16-7-1965) in categorical terms he prayed that he be allowed to give a security making up any deficiency in the event of the property being resold and on 4-5-1966, the prayer being allowed and partial refund being made of Rs. 28,000/- R. 85 was immediately breached. At no stage any court has expressly condoned the breach although from time to time his prayer for withdrawal and re-deposit was allowed. If the prayer was allowed that was done without prejudice to the rights of parties statutorily protected and nothing else could be done before that. Both, decree-holder and judgement-debtor, are ensured under Rr. 84/85 and 82 right respectively to re-sale and postponement thereof; their right arises the moment Rr. 84 and 85 are breached. Their right cannot be defeated is any manner and has to be protected and must be deemed to have been duly protected in this case in the absence of a clear and express order to the contrary. ( 16 ) INDEED when a sale is not confirmed, as per sub-rule (5) aforequoted the auction purchaser has a right only against the decree holder to receive payment from him of the money which has been disbursed to him for satisfaction of the decree. Therefore, when there was no purchase-money in deposit with the court and decree was satisfied otherwise the auction-purchaser would have no defence to the claim of the nature contemplated under sub-rule (4 ). In such a case the third-party's claim would be decreed on the footing that the title to the property had not been clouded by attachment or sale as there was no subsisting attachment or subsisting sale. A Court sale, till it is confirmed and the sale is made "absolute" in terms of R. 92 (1), cannot and does not create right in rem in the auction purchaser. This is statutorily contemplated under Rr. 95 and 96 of O. 21 itself as the auction-purchaser, until the sale is confirmed and the sale certificate is issued, does not have the legal right to enter upon the property purchased as the "interest" of the judgement-debtor in the property purchased by him does not cease till then. This is statutorily contemplated under Rr. 95 and 96 of O. 21 itself as the auction-purchaser, until the sale is confirmed and the sale certificate is issued, does not have the legal right to enter upon the property purchased as the "interest" of the judgement-debtor in the property purchased by him does not cease till then. ( 17 ) TO the maintainability of the suit, an objection is taken by Shri R. D. Jain, who appears for the auction-purchaser/ respondent. His submission is that objection to the attachment of the suit house being filed only by Dhanwantibai, who has not joined the plaintiffs and is impleaded only as a defendant, the suit at the instance of the plaintiff is not maintainable. The attachment being in 1962, the provisions of old Rr. 58 and 63 will apply in virtue of S. 97 (2) (q) of C. P. C. (Amendment) Act 1976 but the question still would be if the plaintiffs who had not preferred any claim under R. 58 are not entitled to file the instant suit. It may be noted in this connection that Dhanwantibai filed on 5-10-1972 written statement supporting plaintiffs' case and she also deposed in the suit for that purpose. But, her objection being rejected in 1966 the plaintiff would not be evidently entitled to rely on her support given in 1970 as the suit contemplated under R. 63 (old) had to be filed within one year and the order had therefore become final against her. The material point however is that the plaintiffs not having filed claim under old R. 58, R. 63 (old) would not come in their way. Under the old law, the remedy under R. 58 was alternative and concurrent remedy and it is only under the amended Rr. 101 and 58 (2) that a separate suit is barred, albeit at the instance of parties or "their representatives'' and not at the instance of a "third party" claiming independent title as contemplated under R. 92 (4) itself. ( 18 ) EVIDENTLY such a "third party" as indicated above would not be bound by any order passed or step taken by parties in respect to "attachment" or "sale" of the suit property. ( 18 ) EVIDENTLY such a "third party" as indicated above would not be bound by any order passed or step taken by parties in respect to "attachment" or "sale" of the suit property. In such a suit an unconfirmed sale would be liable to be nullified not only on the ground that the property was not liable to be attached as it was not of judgement-debtor's title, but also on the grounds that it was not "liable to sale" within the meaning of R. 64 and that the "sale" failed as the "attachment" by operation of law fell in any manner. The plaintiffs would be entitled to plead and to benefit by the automatic removal of attachment under Cl. (b) of R. 55, of which I extract only relevant portion :"55. Removal of attachment after satisfaction : Where - (a ). . . . or (b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or (c) the attachment shall be deemed to be withdrawn. . . . "in the instant case satisfaction of the decree "through court", and at least "otherwise" (even if certification by court is held validly disputed) is beyond any pale of controversy. As earlier alluded, payment to the decree-holder was made "through court" and parties (judgement-debtor and decree-holder) even certified satisfaction of the decree to the court by their joint application made on 29-9-1970. In Ganpat Singh, AIR 1987 SC 1443 it is noted at para 10 that under the old law the "sale" was subject to the result of the suit which would indeed mean the final and logical result in the ultimate appeal; the "sale" does not become "absolute" at any earlier stage. ( 19 ) HOWEVER, the case law cited by appellants' counsel, Shri Arun Mishra, may be noted. In Kuber Singh, AIR 1925 Oudh 128 it was held even if the procedure laid down in R. 89 of O. 21 was not followed, court, could set aside sale to give effect to arrangement arrived at between parties, before the sale is confirmed, when the decree-holder is paid off. To the same effect is the Bench decision in Ram Prasad, AIR 1916 Cal 64 holding that the court can decline to confirm a sale when the decree was satisfied and parties expressed a concurrent wish. To the same effect is the Bench decision in Ram Prasad, AIR 1916 Cal 64 holding that the court can decline to confirm a sale when the decree was satisfied and parties expressed a concurrent wish. In both decisions, however, unlike the instant case, the auction-purchaser was also a party to the arrangement. The decision of the Apex Court in Sawai Singhai, AIR 1966 SC 1068 , cited by Shri Mishra, however, does support my view that a "third party's" suit based on title would have a wider scope as it was held by their Lordship that the scope of enquiry under R. 58 (old) of O. 21 was limited and in a suit even under R. 63 (old) the question of title and not only possession could be raised. ( 20 ) THE view I have taken in the matter leads me to a single conclusion that there is no subsisting "sale" of the suit property and the respondents/auction-purchaser's legal representatives having no subsisting interest in the suit property and not being entitled to an order of confirmation of sale under R. 92 (1) of O. 21, C. P. C. , the suit property being deemed to be freed from attachment, the plaintiffs are entitled to the declaration prayed in that regard. ( 21 ) HOWEVER, it has also to be stated that on the case pleaded and proved it is difficult to hold that the suit property was not liable to be attached; the declaration in that regard cannot, therefore, be granted. The finding of facts of two courts below on that question is not assailable in this appeal. On the questions of law involved in reaching that finding I am not convinced if the courts below have committed any error of law. Indeed, both the grounds of attack pressed by Shri Mishra have not. impressed me. I am not satisfied that the debt incurred by the judgement-debtors was not binding on the plaintiffs, or the joint family property, the suit property. The debt was not avyavaharika, as contended Gulab Chand and Hukam Chand, because they were both cited as Managers, would not make the debt their individual debt as evidence preponderates that they were not carrying on any separate business but joint family business and debt was of that business and not of any new business. The debt was not avyavaharika, as contended Gulab Chand and Hukam Chand, because they were both cited as Managers, would not make the debt their individual debt as evidence preponderates that they were not carrying on any separate business but joint family business and debt was of that business and not of any new business. In this connection reliance by Shri R. D. Jain on the decision in Lala Raghubir Singh, AIR 1943 PC 40 is most apposite. How a member of the joint family treated the business, even if new business was started, had to be seen and in this case there is no doubt about that. ( 22 ) TRUE, some of the members of the joint family, some of the plaintiffs, were minors when the debt was contracted or the ex parte decree was passed or even when the property (suit house) was attached. Shri Mishra has contended, relying on Seth Kishori Lal (AIR 1940 PC 145), that the courts below erred in law in placing burden wrongly on the plaintiffs to prove that the debt was not binding on the minors. I do not propose to remand the suit only on that ground for re-trial, after 23 years. As a matter of fact this exercise is wholly unnecessary because of the view taken in the matter, the suit being decreed and relief granted to the plaintiffs on other grounds. ( 23 ) INDEED, without any hesitation I would accept Shri Mishra's submission that Dhanwantibai had interest in the suit house and therefore the suit house could not be attached to her detriment. This view I take on the authority of Jagmohan Pillai ( AIR 1987 SC 1493 ) because her right to maintenance from the property which she possessed (one room in the suit house as per her evidence) became perfected into absolute right of ownership thereof under S. 14 (1) of Hindu Succession Act. Counsel's reliance on Bai Vajia ( AIR 1979 SC 993 ) to support Dhanwantibai's claim on that basis is commendable. Unfortunately, her claim was lost as her objection under R. 58 (old) of O. 21 was rejected and the decision on the question became final. which could not be reopened in the instant suit. by the plaintiffs. Old R. 63 of O. 21 makes "conclusive" the order passed against her in the proceedings concerning her objection made under R. 58. Unfortunately, her claim was lost as her objection under R. 58 (old) of O. 21 was rejected and the decision on the question became final. which could not be reopened in the instant suit. by the plaintiffs. Old R. 63 of O. 21 makes "conclusive" the order passed against her in the proceedings concerning her objection made under R. 58. ( 24 ) IN the result, the appeal succeeds and is allowed, but without costs. The suit is decreed. It is declared that there is no valid and subsisting auction sale of the suit house to the main respondents and that they have no right, title and interest in the suit house. They are restrained accordingly from interfering with plaintiff's right therein. Misc. Appeal No. 72 of 1984. ( 25 ) THE Executing court passed an order on 12-12-1982 disposing of the prayer of the instant plaintiffs appellants made in the Execution Case No. 67 of 1960 for releasing the house from attachment on satisfaction of the decree. To the application the legal representatives of the auction-purchaser filed no reply and the prayer was allowed but the auction-purchaser was held entitled to mesne profit of Rs. 250/- per month from 21-9-1966 to 23-4-1975. In appeal, on 4-7-1984, the order was set aside in toto. The attachment was restored sustaining the plea of res judicata and mesne profit was cancelled taking the view that until the sale was made absolute the auction-purchaser's right to mesne profit did not accrue. ( 26 ) BECAUSE of what has been held and decreed in S. A. No. 107 of 1975, the impugned order passed by the Court below is set aside. The order of the Executing Court in so far it concerns release of attachment, is confirmed. However, the respondents, legal representatives of the auction purchaser are held entitled to interest, payable to them by the appellants, at the rate of 6 per cent per annum on Rs. 36,000/- from 11-11-1964 to 4-5-1966 and on Rs. 8,000/- from 5-5-1966 to 2-9-1971 on equitable consideration even though the right to claim mesne profit never accrued to the auction-purchaser in terms of R. 96 of O. 21 as the sale was not confirmed. Indeed, R. 96 has kept alive till now the interest of the judgement-debtors and their successors-in-interest in the auctioned property. 8,000/- from 5-5-1966 to 2-9-1971 on equitable consideration even though the right to claim mesne profit never accrued to the auction-purchaser in terms of R. 96 of O. 21 as the sale was not confirmed. Indeed, R. 96 has kept alive till now the interest of the judgement-debtors and their successors-in-interest in the auctioned property. From what is stated in para 6 of the memorandum of appeal it appears that from the rental income of the suit property deposited in the Executing court the auction-purchaser was allowed by the said court to withdraw some amount on account of interest. The balance due, if any, according to today's reckoning shall be payable to his legal representatives and appropriate order in that regard shall be passed by the Executing Court. For payment to the appellants of the remaining amount of the rental deposits, if any, appropriate orders shall also be passed by that Court. The tenants shall not be required to make any further deposit in Executing Court of the rent payable by them to the appellants. ( 27 ) THIS appeal is also allowed but partly only to the extent hereinabove indicated. ( 28 ) NO costs. Order accordingly. .