Vithaldas Prabhu And Another v. Subraya Manjappa And Others

Macleod, C.J:— This is an appeal under section 47 of the cpc. The 3rd defendant in Suit No. 119 of 1911 ??? that the decree-holders realized such more than what was ??? on the ??? which was sought be execrated, ??? prayed that the Darkhast should be ??? off. The application has been canted in both the lower Courts. What ??? happened was this in execution of their decree the decree-holders attached ??? mortgage decree in favour of their judggment-debtors. Order XXI, rule 53, ays down the procedure to be followed when a decree, either for the payment of money or for ??? in enforcement of a mortgage or charge is ??? the Court of shall under sub-rule (2) on the application of the creditor who has attached the decree of the judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. Instead of doing that the Court pub ??? the decrea for sale, and the decree was purchased for Rs. 200 by the decree-holder. These proceedings were absolutely wrongly conceived, and certainly it is very strange that in the face of Order XXI, rule 53, the Court should have allowed such a sale to take place. Then the decree-holder having become the purchaser of the decree proceeded to recover what he could on the decree and realized Rs. 600. Obviously there is no equity whatever in favour of the decree-holder who seeks be pocket Rs. 400 which really belonged to his judgment-debtor.

2. Bat it has been argued that the matter which has been dealt with by the lower Courts is res judicata because the 1st defendant has endeavoured to stop the sale, and on his application it was held that the sale was valid. The 3rd opponent was not served with notice of that application.

3. An order was obtained from the Court either that the notice might be served on the 1st opponent, or if he refused accept it, that substituted service should be effected. The 1st opponent accepted service of the notice. But that cannot be taken as service on opponent No. 3 who has not been proved be have been living with opponent No. 1 at the time. It is quite possible that if opponent No. 1 had not accepted service, then substituted service, according to the provisions of the Code, would have been effected. Then opponent No. 3 would be bound by it. But all that we have before as is that notice was served on some one who did not represent the 3rd opponent. Therefore he cannot be considered as being bound by the decision in the matter. That is sufficient be dispose of the appeal, because, in my opinion, it is perfectly clear the appellants cannot take advantage of the wrong procedure which was adopted by the Court in order to pay money in their pocket which really belonged to their judgment-debtor. What would have happened if an out-sider had purchased the decree is a question which need not ??? gone into. The appeal is dismissed with costs.

Fawcett, J.:— I concur.

4. Decree confirmed.