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Sukhdeo Dass And Others v. Rito Singh Opposite Party.
Factual and Procedural Background
The decree-holders, in execution of a money-decree against Bhup Narain Singh and his two sons, brought to sale among others a property described as lot 3. The auction-purchaser Rito Singh initially had that sale set aside by the executing Court on the ground that Bhup Narain Singh's interest had previously been sold and he had no saleable interest. On appeal the appellate Court reversed that order and confirmed the sale. The auction-purchaser had already drawn out the auction-purchase money (Rs. 2,400). After confirmation, the executing Court, at the instance of the decree-holder, directed the purchaser to refund the money; on his objection the Court attached his movable property. The purchaser appealed to the District Judge, who held that the purchaser had in effect bought only two-thirds (because one-third had been previously sold), that he would thereby lose Rs. 800, and that he could not be compelled to go through with the sale and refund the purchase-money. The decree-holder then sought further relief in this Court; the Court treated the memorandum of appeal as a petition for revision under Section 115 of the CPC and issued a rule on the auction-purchaser to show cause.
Legal Issues Presented
- Whether the executing Court's order directing the auction-purchaser to refund the purchase-money was a "decree" within the meaning of the Code of Civil Procedure.
- Whether an appeal (first or second) lay from the executing Court's order directing refund, or whether the order was made under the Court's inherent power (Section 151 CPC) and therefore not appealable.
- Whether the executing Court properly ordered refund under its inherent powers (Section 151 CPC) despite the purchaser having drawn out the money.
- Whether the attachment of the purchaser's movable property to compel restitution was lawful and the proper mode of execution of the refund order.
Arguments of the Parties
Decree-holder's Arguments
- The auction-purchaser should be compelled to refund the purchase-money drawn from Court.
- The refund could be compelled under Section 144 of the CPC (or, if not, under the Court's inherent powers in Section 151 CPC).
- First and second appeals against the executing Court's order were competent (as argued before lower courts and by reference to precedent).
Auction-purchaser's Arguments
- He objected to being compelled to refund the purchase-money; he had drawn out Rs. 2,400 and would suffer a loss of Rs. 800 because he had bid under the impression the whole property was being sold.
- He resisted attachment of his movable property to compel refund.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jotindra Mohan Tagore v. Mahomed Basir Chowdhry | Held that the question whether an auction-purchaser is entitled to a refund of the sale-money is not within the scope of S.244 (former Procedure Code) corresponding to S.47 of the present Code. | Used to support conclusion that the executing Court's refund order was not a "decree" within S.47 and therefore no second appeal lay. |
| Amirannessa Chowdhurain v. Karimannessa Chowdhurain | Reported that a Division Bench held first and second appeals against an order directing refund were competent (report lacks reasons). | Cited by opposite counsel; Court observed the report lacks reasons and expressed doubt whether the result would have differed if the competency point had been taken during hearing. |
| Jagdip Narain Singh… v. F.H Holloway…. | Appeal in which a preliminary objection as to competency was taken but not decided; case disposed on limitation. | Noted by Court; counsel could not show other authority establishing that an order under S.151 is subject to first or second appeal. |
| Safaraddi v. Durga Prasad Sen | Division Bench held that the Court could not, under Section 144 or inherent powers, order a decree-holder to refund mesne profits in respect of a sale set aside. | Cited as contrary authority; Court acknowledged it but declined to follow it on the facts of the present case. |
| Beni Madho Singh v. Pran Singh | Holds that Section 151 is applicable (takes a different view from Safaraddi). | Cited; Court said it would not go so far but found the facts here justified exercise of S.151. |
| Jogendra Chandra Sen v. Wazidunnissa Khatun | Principle that an order for refund may be executed as an ordinary money decree. | Applied to hold that the proper procedure is to execute the refund order as an ordinary money decree and that attachment to compel restitution was permissible. |
Court's Reasoning and Analysis
The Court first analyzed whether the executing Court's direction to refund was a "decree" under the CPC. It concluded the order was not within Section 144, did not adjudicate the parties' rights in the suit, was not made in the suit, and the auction-purchaser was not a representative of the judgment-debtor; therefore the order did not fall under Section 47 and was not a decree, so no second appeal lay.
On whether an appeal to the District Judge lay, the Court reasoned that if the order was not a decree, it could only be an order; but Order 43, Rule 1 contains no provision for appeal against such an order. The Court held the order was made under Section 151 (inherent powers) and that no appeal lay against it; hence the District Judge lacked jurisdiction to set it aside.
Turning to the propriety of the executing Court's order, the Court acknowledged conflicting authorities (Safaraddi; Beni Madho Singh) but held that the facts here justified exercising Section 151: money which ought not to have been taken out had been taken out, and the Court may correct a result amounting to an abuse of process and restore parties to the position they would have occupied absent the erroneous setting aside of the sale.
On execution of the refund order, the Court noted the CPC contains no specific provision for executing such an order but applied the principle in Jogendra Chandra Sen that the proper mode is execution as an ordinary money decree. The Court rejected the purchaser's contention that he should not be compelled because he would lose Rs. 800, observing he purchased "with his eyes open."
Holding and Implications
Appeal allowed; the order of the District Judge is set aside and the order of the executing Court restoring the sale and directing refund is restored.
Direct effects: the auction-purchaser is required to refund the auction-purchase money (Rs. 2,400) and the attachment of his movable property to compel restitution is upheld as executable by ordinary money-decree procedure. The Court ordered consolidated costs for the successful party amounting to Rs. 48 (covering both the District Judge's Court and this Court).
No broader or new legal precedent beyond the application of existing authorities was announced; the decision rests on statutory interpretation of appealability and the exercise of inherent power under Section 151 CPC in the facts of this case.
Mullick, J.:— The decree-holders, in execution of a money-decree against one Bhup Narain Singh and his two sons, brought to sale among others a property described as lot 3. The auction-purchaser Rito Singh succeeded in getting that sale set aside by the execution Court, on the ground that the interest of Bhup Narain Singh had been previously sold in execution of another decree and that at the time of the sale he had no saleable interest in the property. On appeal that order was reversed and the sale was confirmed. In the meantime the auction-purchaser had drawn out from Court the auction-purchase money, but when the sale was confirmed by the appellate Court, the execution Court at the instance of the decree-holder called upon the purchaser to refund the money, which amounted to a sum of Rs. 2,400. The auction-purchaser objected, but the Court thereupon attached his moveable property. The auction-purchaser then appealed to the District Judge, who held that Bhup Narain Singh's one-third share in the property having been previously sold what the auction-purchaser was getting by the sale was only a two-thirds share; that as he had bid Rs. 2,400 under the impression that the whole property was being sold he would be a loser to the extent of Rs. 800, and that he could not be compelled to go through with the sale and to refund the purchase-money.
2. It was argued before the District Judge that the auction-purchaser could be compelled to make restitution under Section 144 of the CPC, but the learned Judge held that section could only apply when a decree was reversed and not when an order setting aside a sale was reversed. He was next asked that if Section 144 of the CPC did not apply then he should in exercise of his inherent powers, under Section 151 of the CPC compel the auction-purchaser to refund. The learned Judge declined to exercise his powers under that section, because in his opinion to do so would be to compel the auction-purchaser to suffer a loss of Rs. 800. He accordingly dismissed the appeal before him. The decree-holder than preferred a second appeal to this Court; but being of opinion that no second appeal lay, we treated the memorandum of appeal as a petition for revision and issued a Rule Upon the auction-purchaser to show cause why we should not interfere under Section 115 of the CPC.
3. The first question that arises is whether the order of the Executing Court directing the auction-purchaser to refund the money was a decree within the meaning of the Code of Civil Procedure. It is clear that it was not an order coming within Section 144 of the CPC nor an order adjudicating the rights of the parties in the suit. It certainly was not made in the suit, nor was the auction-purchasar in this case a representative of any party. It follows that the order does not come within the scope of Section 47 of the CPC and cannot be a decree. It would fall under that suction if the auction-purchaser can be regarded as a representative of the judgment-debtor, but, in my opinion, the auction-purchaser cannot be so regarded in this case. Moreover, the question whether an auction-purchaser is entitled to a refund of the sale-money has been held not to be a question coming within the scope of S. 244, of the former Procedure Code, which corresponds to S. 47 of the present Code, sea Jotindra Mohan Tagore v. Mahomed Basir Chowdhry(1). Therefore, in my opinion the order made by the executing Court in this case was not a decree and, therefore, no second appeal lies to us. The next (question is whether any appeal lay to the District Judge. If the order was not appealable as a decree, then it could be only appealable as an order; but O. 43, R. 1, does not make any provision for an appeal against an order such as this. The order must have been made under Section 151 of the CPC in exercise of the Court's inherent powers and no appeal lay against it. The learned District Judge had no jurisdiction to set it aside. The learned vakil for the opposite party has brought to our notioa the case of Amirannessa Chowdhurain v. Karimannessa Chowdhurain(2).
4. In that case a sale was set aside at the instance of the judgment debtor on the ground of fraud on the part of the decree-holder and the auction-purchaser and the Court on the application of the judgment-debtor directed the auction-purchaser to refund the mesne profits from the property. A Division Bench of the Calcutta High Court held that a first and second appeal against the order were competent. The report of the judgment does not contain the reasons for the decision, and with the greatest respect I venture to think that the decision might have been different if the point as to the competency of the appeal had been taken in the course of the hearing of the appeal instead of being taken after judgment had been pronounced.
5. The learned vakil has also drawn our attention to a decision in appeal from Appellate Order No. 295 of 1916, dated 13th February, 1917, Jagdip Narain Singh… v. F.H Holloway….(3), by a Division Bench of this Court. In that case the judgment-debtors got a sale sat aside and then applied for compensation for the period for which they were kept out of possession. A preliminary objection as to the competency of the appeal was taken but the point was not decided and the case was disposed of on the point of limitation. The learned vakil has not been able to show any other authority in support of his proposition that an order under Section 151 of the CPC is subject either to first or second appeal. The order of the learned District Judge, therefore, must be set aside. There remains the question whether the order of the executing Court was one that should have been made. In Safaraddi v. Durga Prasad Sen(4) a Division Bench of the Calcutta High Court held that the Court could not either under Section 144 of the CPC or under its inherent powers order a decree-holder to refund mesne profits in respect of a sale that was set aside. An earlier decision, however, in Beni Madho Singh v. Pran Singh(5) takes a different view and holds that S. 151 is applicable. Without going so far as the learned Judges who decided this last case, it is sufficient for us to say that the facts of the case before us justify the order under Section 151 of the CPC. Here money which ought not to have been taken out has been taken out. It is clearly within the power of the Court to correct a result which amounts to something akin to an abuse of the process of the Court and to put the parties in the position in which they would have been if the Court had not erroneously set aside the sale in the first instance, and if there had been no necessity to get that erroneous order corrected by the appeal Court. In my opinion the executing Court acted very properly in ordering the refund of the money.
6. Finally, the question is whether the order attaching the property of the auction-purchaser so as to compel him to restore the money is correct. The Code of Civil Procedure contains no provision for the execution of an order for the refund of money drawn out by a party in a case such as this, but I taka it that the principle laid down in Jogendra Chandra Sen v. Wazidunnissa Khatun(6) will apply and that the proper procedure is to execute the order as an ordinary money decree.
7. There is ample authority for the proposition that the Code of Civil Procedure is not exhaustive and that when a Court has made an order which lit has jurisdiction to make, there is inherent power in the Court to have that order carried into effect. The learned vakil for the opposite party complains that if the order is carried into effect, the auction-purchaser will be a loser to the extent of Rs. 800; but the reply to this is that at the auction he purchased with his eyes open and if the title does not now turn out as perfect as he expected the fault is his own.
8. The result is that the order of the laarnad District Judge is now sat aside and that of the executing Court restored. The successful party before us will gat costs in She Court of the District Judge and in this Court. The costs in the two Courts will be passed at a consolidated sum of Rs. 48.
V.S/R.K
9. Appeal allowed.
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