Radha Kishun Lal v. Kashi Lal

Mullick, J.:— (after stating the facts, as set out above, proceeded as follows):—

The only point in the case is, whether Article 183 of Schedule 2 of the Indian Limitation Act of 1908 applies to the case. On behalf of the judgment-debtor a number of authorities have been cited to show that under the present Civil Procedure Code the auction-purchaser cannot bring a suit to recover from the decree-holder the auction-purchase money on the ground that the judgment-debtor had no saleable interest in the property and that the only remedy open to the auction-purchaser is to apply under Order XXI, rule 91, to have the sale set aside. In support of this contention our attention has been drawn to Nannu Lal v. Bhagwan Das, Juranu Muhammad v. Jathi Muhammad and Subbu Reddi v. Ponnambala Reddi.

Now these authorities have really no bearing on the question before us. Here the decree-holder himself is the auction-purchaser. There is no prayer for the refund of the auction-purchase money and the only question is, whether by reason of the litigation which took place after the sale and by reason of the decree in favour of Firangi Lal, the execution proceedings can be said to have been revived and the present execution case may be regarded as a continuation of the former execution proceedings. If Article 181 applies, then the decree-holder can get time either from the date on which Firangi Lal got his decree, namely, the 24th May, 1919, or on the date on which the sale of lot No. 2 was finally set aside, namely, the 19th April, 1920. In either case the application will be within time and, in my opinion, there can be no doubt that this is a case to which Article 181 should apply. The effect of the decree, in favour of Firangi Lal, was to set aside the sale and no formal order to that effect was required. The decree-holder and the judgment-debtor were both parties to the suit and, therefore, they are bound by the order. The argument that under the present Civil Procedure Code no sale can be set aside, except by a resort to the procedure of Order XXI is, in my opinion, not well founded; nor is it necessary that the execution Court should formally cancel the order of satisfaction which was recorded after the sale of lot No. 1, before the decree-holder can proceed to recover the debt which has been revived in consequence of the decree declaring the sale of lot No. 1 to be invalid.

It is not necessary to cite many authorities in support of the proposition that the present case belongs to a class to which Article 181 is applicable; but the following cases are in point and will suffice: Keramat Ali v. Nagendra Kishore Ray and the decision of their Lordships of the Privy Council in Maharaja Rameshwar Singh v. Homeshwar Singh.

The result is that the decree of the District Judge is affirmed and the appeal is dismissed with costs.

Bucknill, J.:— I agree.

Appeal dismissed.