Hussain Khan Vs. Shiv Nath Sahu & Anr  INSC 179 (26 March 1998)
Ray, G.B. Pattanaik
O R D
appeal is directed against the order passed by the Allahabad High Court on April 17,1980 in Second Appeal No.2269/1968 being
connected with Second Appeal No.2270/1968. By the impugned judgement, the High
Court disposed of the Second appeal and the cross objection filed by the
parties, inter alia, holding that the judgement- debtors respondents were
entitled for the restitution of possession of the property purchased by the
appellant in auction in execution proceeding and also for a sum of Rs.20,309/-
from the auction purchaser-appellant by way of damages and mesne profits
subject to payment of Rs.8,000/- by the said judgement -debtors to the auction
be stated here that the appellant purchased the property belonging to the
predecessor-in-interest of the judgement-debtors in auction in execution of
money decree passed against the judgement-debtors. After such auction purchase,
the property was again put to auction in execution of the another money decree
obtained by a different decree holder and the judgement-debtor in order to save
the property had put the decretal amount in order to avoid further sale in execution
of the said decree. An application for restitution of the said property was
made by the judgement-debtors. Such application was opposed but ultimately the
order of restitution under Section 144 of the Code of Civil Procedure was
passed in favour of the judgement-debtors. An appeal was taken by the appellant
auction purchaser against such order and the appeal was allowed by order dated October 31, 1952 and the case was remanded . After
the remand, auction purchaser filed objection to the judgement-debtors'
application for restitution, inter alia, contending that the auction purchaser
was entitled not only to the payment of Rs.8,000/- being the sale price but
also Rs.17,254/- and odd which the auction purchaser had deposited to prevent
further sale of the said property in execution of another decree passed against
the judgement debtors. The auction purchaser also claimed Rs.3500/- as cost of
repairs and Rs.50/- per annum for such repairs since 1942. The restitution
application was allowed and the executing court directed for delivery of
possession of the disputed property to the judgement-debtors together with a
sum of Rs.65,565/- on account purchaser- appellant.
aggrieved by such order of the executing court, the auction purchaser-appellant
preferred an appeal and the judgement-debtors also filed appeal against the
the appeals were disposed of by the Civil Judge allowed the appeal of the
auction purchaser and directed that the judgement-debtors should pay Rs.8,000/-
along with interest which comes to Rs.22,400/- and also a sum of Rs.19,723/-
and odd but no direction was given for payment of interest on the aforesaid
amount. The appeal of the judgement-debtors was dismissed. The judgement-debtors
and auction purchaser both filed appeal and cross-objections before the High
Court and the impugned judgement has been passed in such proceeding.
the pendency of this appeal, unfortunately, at the instance of the appellant,
the names of the respondent 1/2, 2/1 and 2/2 being heirs of one of the judgement-debtors
were deleted from the array of parties at the risk of the appellant.
Subsequently, a further order was passed by this Court directing that the
attention of the Court should be drawn about such deletion and consequences
flowing there from.
the appeal was taken up for hearing, Mr. Mehrotra, the learned senior counsel
appearing for the respondents, took a preliminary objection that the decree
passed by the High Court in the restitution application which is the subject
matter of challenge in the instant appeal, cannot be maintained in the absence
of some of the judgement-debtors whose names were deleted at the risk of the
appellant. The said judgement-debtors jointly obtained the said decree holders,
no effective order can be passed in this appeal.
decree obtained by the judgement-debtors is a joint decree and not divisible.
Therefore, if any order is passed by the High Court the same will bring
inconsistent position vis-a-vis the respondents on record and decree holders
not on record.
the learned senior counsel appearing for the appellant, however, has streneously
contended that in equity, the order passed by the High Court is unreasonable
and the auction purchaser has been fastened with the liability which was not
payable by the auction purchaser.
has contended that it has not been held that there was any illegality or fraud practised
by the auction purchaser in the auction sale proceedings. The Judgement-
debtors although had no liability to pay the amount to satisfy the other money
decree passed against the judgment- debtors, but in order to prevent further
auction of the said property, in the event of non payment of decretal amount by
the judgement debtors, the auction purchaser had to pay the decretal amount on
behalf of the judgement debtors. Mr. Ray has submitted that judgement debtors
in the first execution proceeding are on record. Therefore, this appeal is
maintainable even if other judgement debtors in whose favour order of
restitution was made, are not on record in this appeal.
are, however, unable to accept the said submission of Mr.Ray. The question of
claim and counter claim of the parties need not be considered on merit because
the impugned decree passed in the restitution proceeding has been made in favour
of the judgement-debtors whose appeals were allowed by the High Court.
Therefore, any variation of the said decree is no possible in the absence of
some of the judgement debtors in whose favour impugned decree was passed by the
High Court. In our view, Mr. Mehrotra has rightly contended that the decree in
the instant case, is indivisible and such decree cannot be interfered with
unless all the parties in whose favour such decree was passed are before this
Court. This appeal is, therefore, dismissed but without any order as to costs.