This is an appeal from the order of the Additional Subordinate Judge of South Kanara dated the 20th February 1929 allowing an appeal from the order of the District Munsif of Kasargod dated the 16th January 1926 in R. E. A. No. 277 of 1925, an application in execution of the decree in O. S. No. 21 of 1921 on the file of the Court of the District Munsif of Cannanore.
The appellant in this appeal was the petitioner in execution and also the plaintiff in the suit. He obtained a decree for a certain amount of money and on his application certain property was attached and sold in March 1925 in execution, the purchaser being himself. The purchase money, namely, Rs. 780, was not paid by him but was set off on his application towards the decree amount by the Court, and satisfaction to this extent of the decree was recorded by the Court. In September 1925 he applied to the executing Court to cancel the sale and also to vacate the order setting off the purchase money against the decree amount and to restore the decree to its original condition, so as to enable him to recover the entire decree amount from the judgment-debtors. He claimed in his petition that it was not barred by limitation as he came to know only on the 24th August 1925 that the 1st judgment-debtor had no interest at all in the property that was sold. The District Munsif was of opinion that, so far as the application was one to set aside the sale, it was barred under Art. 166 of the Limitation Act under which such application should be made within 30 days from the date of the sale. He found, however, that though a stranger auction-purchaser would, even if his right to apply for setting aside the sale under O. 21, R. 91, was barred by limitation, have the right to file a separate suit to set aside the sale and to recover the purchase money, the petitioner before him, being the decree-holder himself, had no such right in view of the provisions of S. 47 of the Civil Procedure Code. He then proceeded to express his opinion that as the first judgment-debtor had admittedly no interest in the property sold, the decree-holder purchaser had bought nothing and therefore nothing need be set aside, and that without setting aside the sale it was open to him to set aside the order recording satisfaction to the extent of the amount of the purchase money, namely, Rs. 780. He was of opinion that as the question that he had to decide was really one relating to satisfaction of the decree this question which was to be decided by the executing Court could be raised in an application made within three years from the date of the decree, or from the date of the previous-step in aid of the execution. On appeal by the judgment-debtors, the Additional Subordinate Judge was of opinion that the executing Court had no right to set aside the order recording satisfaction without setting aside the sale, because if the sale stands, the order recording satisfaction should also stand, the one being a necessary corollary of the other. It was also conceded before him on behalf of the decree-holder purchaser that the Court sale was not exactly a nullity. The learned Subordinate Judge also added that where the judgment-debtor has no saleable interest in the property, the only remedy that the decree-holder purchaser has is by an application under O. 21, R. 91, Civil Procedure Code, and that the sale could not be set aside by the decree-holder purchaser by any other means, and as that remedy by way of an application under O. 21, R. 91, was barred by limitation, he had lost his remedy. The learned Subordinate Judge relied on the ruling in Muthukumarasamia Pillai v. Muthuswami Thevan .
There can be no doubt that the order of the Subordinate Judge is in accordance with the ruling in Muthukumarasamia Pillai v. Muthuswami Thevan , which is relied upon by him. It was there held that a sale in execution of property which subsequently is found to be not to belong to the judgment-debtor is not void, and that it does not make any difference whether the purchaser is the decree-holder or any stranger. It was also held that an application by the decree-holder purchaser to set aside a sale on the ground that the property which he brought to sale under the bona fide belief that it belonged to the judgment-debtor was not really the property of the judgment-debtor was one which would be governed by Art. 166 of the Limitation Act. It was further held that the only course that was open to the decree-holder purchaser on discovering that the property sold at his instance by Court and bought by him did not belong to the judgment-debtor, is to apply to have the sale set aside under O. 21, R. 91, Civil Procedure Code, and that he is not entitled to a larger period of limitation merely because the main relief sought by him in the subsequent application was further execution of the decree. I am of opinion that in view of this ruling the order of the Subordinate Judge must be held to be right.
The appellant's advocate has referred to several decisions and in particular to the recent Full Bench decision in Macha Goundan v. Kotoora Goundan in C. M. S. A. No. 54 of 1930. There is however nothing in this Full Bench decision which really helps the appellant in this case. What the Full Bench decided was that, where a stranger is the auction-purchaser, he can have the sale set aside in execution by an application under Rr. 89, 90 or 91 of O. 21, and thereupon obtain a refund under R. 93, and that where the sale turns out to be futile by reason of a finding in another suit, the only remedy which he has is by way of a regular suit and not by an application under O. 21, R. 93. This does not really help the appellant in this case, for, in the first place, he is the decree-holder in the suit and has no right to file a separate suit in respect of a question which really relates to the execution or satisfaction of his decree, and secondly, in view of the facts of the present case, as he has paid no money into Court, he has no right to ask for a refund. The only relief he can ask for is to set aside the sale or to get the order recording satisfaction set aside. As regards the first prayer, it is barred by limitation and there can be no doubt about this. As regards the latter prayer, there is no provision of law which permits the executing Court, once it has recorded satisfaction, to set it aside; there is an appeal provided by law from such an order and no appeal was preferred. The District Munsif, in setting aside the order of recording satisfaction made by himself, did not purport to act under his powers of review. He apparently did so because he was of opinion that the sale itself was a nullity. This view however that the sale is a nullity is not correct. The sale stands good unless it is set aside and so long as the sale stands, it is not possible to justify the setting aside of the order recording satisfaction. Otherwise, it would mean that the sale would stand good and nevertheless the purchaser need not pay anything. I am therefore of opinion that the order appealed from is right.
I have not had the advantage of hearing arguments on the other side because the respondents are unrepresented. But in my view, though the case of the appellant may be a hard one, the hardness of it is mainly due to his own negligence, first in not making sufficient enquiry about the ownership of the property which he brought to sale, and secondly in not ascertaining the actual facts of the case in time. The law gave him a remedy, and if the law has fixed a comparatively short period of 30 days for applying to the Court, nothing can be done by the Court to relieve him from this hardship. It is possible that the legislature thought that while a stranger would have a longer period of limitation for the purpose of seeking a remedy by way of a separate suit, a decree-holder, when he chooses to purchase the property which he himself brought to sale, should not have as long a period. Whatever that may be, I am of opinion that according to the law as it stands, the order of the District Munsif setting aside his previous order recording satisfaction was rightly set aside by the lower appellate Court.
The appeal therefore fails and is dismissed.
N. R. R.Appeal dismissed.