Jenkins, C.J:— In execution of a decree immoveable property has been sold, and the judgment-debtor has applied under section 310A of the Civil Procedure Code to have the sale set aside. The application has been rejected by the Second Class Subordinate Judge at Umreth, and the judgment-debtor now asks us to interfere under section 622 of the Civil Procedure Code.
Prior to his application the judgment-debtor sold his interest in the property to a third party, and with the purchase-money the decree holder's claim was paid and satisfaction certified. Under these circumstances the auction-purchaser at the execution sale objects that no application under section 622 will lie as there is an appeal under section 244 of the Civil Procedure Code, and further, that the judgment-debtor has no locus standi under section 310A.
Does section 244(c) apply? It may be conceded that we have here a question relating to the execution, discharge or satisfaction of the decree or the stay of execution thereof That, however, is not enough: it must also be a question “arising between the parties to the suit in which the decree was passed or their representatives.” But clearly no question here arises between the parties to the suit, so that we have to determine the force of the words “or their representatives.”
The opponent, in support of his objection, relies on the judgment of the Privy Council in Prosonno Coomar Sanyal v. Kasi Das Sanyal,. There is a tendency to suppose that this decision has struck out of the section the words “arising between the parties to the suit … or their representatives,” so that it is important to see what precisely was decided there.
Their Lordships stated with approval that the result of the decisions was that “when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser who is no party to the suit is interested in the result has never been held to be a bar to the application of the seotion,” It is clear, therefore, that their Lordships did not hold the auction purchaser to be a party or a representative: they merely held that his interest in the result did not prevent the question being one between parties. This is made even more apparent by the oases to which their Lordships refer. Thus in Kuriyali v. Mayan it was said:
And section 244(c) expressly prohibits any separate suit regarding questions arising between the parties to the suit in which a decree has been passed, or their representatives, and relating to the execution of the decree. The question whether the property mentioned in the decree was available for execution is such a question, and it arose between the decree-holders and this plaintiff, who had been made a party to the decree as the judgment-debtor's representative.
So in Sakharam v. Damodar, where an auction-purchaser was interested and a party, it was said:
The Subordinate Judge was also wrong in referring the Judgment-debtor to a suit, inasmuch as the relief sought by him, at all events as against the judgment-creditor, could only be obtained on an application of the kind contemplated in section 244(c) of the Code of Civil Procedure.
Now here the question is simply between the judgment-debtor and the purchaser of his interest in the land: and can it be said that the auction-purchaser is the representative of a party Per Certainly not of the decree-holder: therefore he can only claim to be a representative of the judgment-debtor. I doubt whether he can claim this character, but assuming, for the sake of argument, he can, it would not aid him; for in our opinion the section does not cover a question between a party to the suit and his representative. Therefore we have not the necessary basis for the application of section 244, and as a consequence we hold no appeal lies, because it is only so far as an order under section 310A comes under, section 244(c) that it is appealable.
But if no appeal lies, then section 622 applies, so that we must next have to see whether, notwithstanding the private sale, the judgment-debtor has a locus standi. In execution under Chapter XIX it is only property of the judgment-debtor that can be attached and sold, so that the petitioner seems to me to answer the description of a “person, whose immoveable property has been sold under this Chapter,” notwithstanding his private sale. Moreover, it is to be noticed that “when an attachment has been made … any private alienation of the property attached … shall be void against all claims enforceable under the attachment.”
For these reasons we think we can interfere and ought to make the rule absolute with costs in both the Courts on the opponents.
Rule made absolute.