Ramchandra v. Lakshman

1. A house belonging to Lakshman, the first opponent of this application for revision, was put to sale in execution of a decree against him by the second opponent Vishwanath, and was bought by the applicant Ramchandra on the 3rd of July 1924. On the 9th of the same month the judgment-debtor Lakshman lodged an objection under R. 90 of O. 21 of the CPC based on allegations of irregularities in publishing and conducting the sale. The enquiry went on till the 20th of December 1924 on which day orders on the objection were to have been passed. It is mentioned in the case that in the interval the judgment-debtor had sold the house to one Sayaji, but that fact does not seem relevant.

2. On the 20th of December, nearly six months after the sale, a sum equal to five per cent. of the purchase-money was deposited in Court, and the decree-holder and the judgment-debtor informed the Court that the decree had been fully satisfied. The learned Judge, in accordance with the decision in Nilkanth v. Yeshwant A.I.R 1922 Nag. 248, then dismissed the application for execution, thereby setting aside the sale. The appeal of the auction purchaser Ramchandra was dismissed by the District Judge, who followed the same ruling, as he was bound to do, and Ramchandra has now applied to this Court for revision of that judgment. Though the decision of the matter in Nilkanth v. Yeshwant A.I.R 1922 Nag. 248 is undoubtedly correct, I am, with all respect, unable to agree with the reason stated for it. In that case the auction sale was held on the 3rd November 1919, and on the 17th of that month the decree-holder alone appeared in Court and said that he had given the judgment-debtor two months' time for payment. On the same day a sum equal to five per cent. of the purchase money was deposited in Court, whether by the decree-holder or the judgment-debtor is uncertain and also immaterial. The contract between the objector and judgment-debtor would probably have to be regarded as full payment of the decree for the purposes of Clause (b) of Rule 89(1) of Order 21, but anyhow the balance was paid on the 25th of November 1919, which is well within thirty days of the sale.

3. In that case it was held in the lower appellate Court that as the application under Rule 89 had not been made by any person having an interest in the property, the sale could not be set aside and the Court was bound to confirm it. Kotval, A.J.C, was inclined to the view that an application by the judgment-debtor was implied in what actually took place. But he refrained from deciding the case on that ground because there was another reason which gave the same result. My learned brother said:

Where a decree is admitted by the decree-holder to be satisfied it ceases to exist as a decree capable of execution. The very foundation of the powers of a Court to execute a decree, namely, the existence of a decree capable of execution, having disappeared, the Court's powers in execution also cease, and confirmation of the sale which is a proceeding in execution cannot be ordered:

vide Khusalchand v. Nandram [1911] 35 Bom. 516 , 13 Bom. L.R 977 and Mul Chand v. Mukta Prasad [1888] 10 All. 83 , (1887) A.W.N 287. It may be mentioned that the first of these cases is also published in Volume 35 of the Bombay Series of the Indian Law Report at page 516.

4. A decree is certainly dead as soon as it is satisfied as between the parties to it, but that cannot be allowed to affect the vested rights of others. If that view of the law is correct in its application to the present case, or as applied to that in which it is stated, then Article 166 of Schedule 2 of the Limitation Act is a dead letter with reference to R. 89(1) of O. 21 of the CPC, and indeed so is Clause (a) of that rule; at any time before a sale is confirmed, it may, or rather must, be set aside on payment of the decretal money, even after the expiry, of the period of thirty days from the sale and without payment of the sum mentioned in Clause (a) of R. 89(1).

5. The wide proposition stated does not seem to me to be supported by the rulings cited nor by that in Sonba v. Ganesha [1912] 8 N.L.R 182, in which Stanyon, A.J.C, cited with approval the Bombay case mentioned by my learned brother in Nilkanth v. Yeshwant A.I.R 1922 Nag. 248. In Mulchand v. Mukta Prasad [1888] 10 All. 83 , (1887) A.W.N 287, the Allahabad case mentioned, the decree was set aside in appeal some months after the sale, and the purchaser was the decree-holder himself. The latter fact, as will be shown later, distinguishes that case from this even more completely than the former.

6. Khusalchand v. Nandram [1911] 35 Bom. 516 , 13 Bom. L.R 977 the Bombay case mentioned, was concerned with the proceedings of a Collector in execution, and a sale of the property in his hands by the judgment-debtor. The statement of the proposition under discussion here was obiter and the basis of the decision was the view that the re-transfer of the case to the civil Court by the Collector must relate back to the date on which satisfaction of the decree was certified to him, because on such certification he could do nothing else but re-transfer the case. I have in another case respectfully dissented from even that view, but anyhow the decision has no bearing on the present case.

7. In Sonba v. Ganesh [1912] 8 N.L.R 182 the only reference to the Bombay case is as follows:

The moment the decree is satisfied, in or out of Court, the Collector's power is at an end, and the incompetency to transfer created by S. 325 A of the 1882 Code ceases;

8. Khushalchand v. Nandram [1911] 35 Bom. 516 , 13 Bom. L.R 977. This was a casual remark going beyond the matter for decision in the case itself and, taken literally, beyond the Bombay ruling. But the question was settled long ago by the judgment of the Privy Council in Zain-ul-Abdin Khan v. Muhammad Ashgar Ali Khan [1888] 10 All. 166 , 15 I.A 12 , 5 Sar. 129 (P.C), decided in the same year and reported in the same volume of the Indian Law Reports as the Allahabad case that has been discussed. It is, therefore, not necessary to submit to a Bench the question of the correctness of the officially published ruling of this Court in Nilkanth v. Yeshwant A.I.R 1922 Nag. 248. In that case their Lordships held that sales, made in execution of a decree which was aside in appeal afterwards, must hold good if they are made to a person who was not a party to the decree but not if they are made to a decree-holder or a person claiming under him.

9. If then the death of a decree by its being set aside in appeal cannot be allowed to interfere with a sale under it to a purchaser who was no party to it still less can it do so when its death is due only to its satisfaction. The order of the lower appellate Court will accordingly be set aside and the sale will be confirmed. All the applicant's costs in all three Courts will be paid by the opposite party. No costs were allowed to the applicant in either of the Courts below, as the application for execution was dismissed in the first Court and the appeal was dismissed without notice to the respondents in the lower appellate Court, so that no pleader's fee has been stated. The applicant, however, did engage a pleader in both the Courts below, and the ordinary pleader's fee on Rs. 1,435, the price paid by the applicant for the property, is Rs. 71-12-0. The pleader's fee in this Court grill be a hundred and fifty rupees.

10. Revision allowed.