Chiranji Lal vs Chhajju Singh and others

R.S. Sarkaria, J.—Circumstances giving rise to E.S.A. 1150 of 1966 are as follows :

Charanji Lal and Sham Singh held two separate money decrees against Inder Singh judgment-debtor. Charanji Lal, in execution of his decree, purchased 11 Bighas and 4 Biswas of land from the judgment debtor. Thereafter, Sham Singh decree-holder got attached the land of the judgment-debtor including those 11 Bighas and 4 Biswas, which had been purchased by Charanji Lal. Charanji Lal preferred objections against that attachment. On the 6th September, 1960, a compromise was arrived at between Charanji Lal and Sham Singh rival decree-holders to which the judgment debtor was also a party, according to which, Sham Singh promised to proceed against the 11 Bighas and 4 Biswas of land that had been purchased by Charanji Lal, only if the other land of the judgment-debtor would not be sufficient to satisfy Sham Singh''s decree.

On 3rd July, 1963, Sham Singh, decree-holder made another application for execution of his decree and got attached the same 11 Bighas and 4 Biswas of land, Charanji Lal raised objections inter alia on the ground that the other land of the judgment-debtor was available in execution of the decree. On 10th August, 1965, the executing Court dismissed those objections of Charanji Lal, who, on 1st October, 1965, preferred an appeal to the District Judge. The latter, on 2nd November, 1965, passed an order staying the execution of Sham Singh''s decree pending Charanji Lal''s appeal. The District Judge accepted Charanji Lal''s appeal on 31st January, 1966, and remanded the case to the executing Court for decision on merits. In the meantime however, on 26th October, 1965, the land was put to sale in execution of Sham Singh''s decree. Chhajju Singh respondent was the highest bidder and the auction was knocked down in his favour. The auction-purchaser, on 5th November, 1965, deposited one-fourth of the purchase price. He deposited the balance on 6th November, 1965. Because of the stay order issued by the District Court, the sale was, however not confirmed.

On 22nd November, 1965, Charanji Lal made an application to the executing Court that he be allowed to deposit the decretal amount in the execution taken out by Sham Singh though his appeal before the District Judge was then pending. Charanji Lal actually deposited the decretal amount on 23rd November, 1965. On 16th February, 1966, Charanji Lal made another application to the executing Court that in view of the deposit made by him, the execution be dismissed as fully satisfied. In consequence, on 29th March, 1966, the executing Court dismissed the execution on the ground that the decree had been fully satisfied. Against that order, dated 29th March, 1966, of the execution Court, the auction purchaser, Chhajju Singh, filed an appeal to the District Judge. The District Judge by his order, dated 10th June, 1966 allowed that appeal. Hence this second appeal by Charanji Lal. In the meanwhile, the decree-holder, Sham Singh, absented himself and the execution was dismissed in default.

The judgment of the learned District Judge mainly proceeds on two grounds :

(1) Charanji Lal was not "holding an interest in the sold land" and, as such, was not competent to make an application under Order 21, Rule 89 of the Code.

(2) He had not deposited five per cent of the purchase money in compliance with the provisions of Order 21, R. 89 Civil Procedure Code, for payment to the purchaser.

Mr. Dalip Chand Gupta, the Learned Counsel for Charanji Lal appellant contends that the judgment of the first appellate Court is based on an entirely wrong view of the law. He emphasises that Charanji Lal was attacking the very foundation viz., the attachment of the land, and, he was not bound to challenge the auction sale when his objections with regard to the attachment were still pending. He further contends that as a result of the dismissal of the execution of Sham Singh, decree holder, under Order 21, Rule 89 Civil Procedure Code, the attachment which Charanji Lal was attacking and all subseqent proceedings including the sale of the attached property stand automatically vacated.

There is force in Mr. Gupta''s contention, Firstly, in the previous appeal filed by Charanji Lal before the District Judge, the latter, on 2nd November, 1965, issued an order staying further proceedings in execution. Anything done by the executing Court thereafter in contravention of that order would not be valid. Secondly, the objections of Charanji Lal against the attachment had been revived as a result of the acceptance of his appeal by the District Judge on 31st January, 1966, and the remand of the case to the executing Court for decision of those objections on merits. Consequently sale proceedings conducted during the pendency of those objections against attachment, would be subject to the decision of those objections. Further, the question as to whether Charanji Lal had any interest in the attached property, and, as such, was competent to file the objections, had become res-judicata between the parties, and could not be re-agitated after the compromise of 6th September, 1960.

Even if it is assumed that the objections filed by Charanji Lal were under Order 21, Rule 38, Civil Procedure Code, and not u/s 47, Civil procedure Code, it was not necessary for him to question the sale or get rid of it by making an application under Order 21, Rules 89 and 90, Civil Procedure Code, when he was challenging the very foundation of the proceedings, viz., the attachment. If any authority is needed, I may refer to Keshav Naryan v. Ghasiram AIR 1956 M.B. 226, where it was held that as the order of attachment made in execution proceedings is itself subject to the decision of a suit under Order 20, Rule 63, and that order is subsequently set aside, the foundation upon which the sale of the attached property took place, would disappear and the sale would ipso facto stand vacated without any formal order setting aside the sale from the executing Court. In the present case, when the execution itself was dismissed under Order 21, Rule 57, Civil Procedure Code, without decision of the objections of Charanji Lal which were then pending, the attachment stood ipso facto vacated and the objections of Charanji Lal accepted.

There is also authority for the proposition that the rule of his pendens applies to auction sales also. Thus, in Madholal Damlal v. Gajrahi AIR 1951 Nag. 194, it was held that a suit under Order 21, Rule 63, is not in essence an original suit but merely a continuation of the proceedings in a claim petition and hence all alienations during the continuance of the proceedings originated by claim petition till disposal of suit under Order 21, Rule 63, are affected by the doctrine of lis pendens. Where the auction sale takes place after the rejection of objection under Order 21, Rule 58, but before the institution of suit under Order 21, Rule 63, it would be affected by the doctrine of lis pendens which applies to auction sales also.

The principle laid down in Madho Lal''s case is applicable to the case before me. The auction sale, which took place during the interregnum between the objection of Charanji Lal''s objections on 10th August, 1965 and the acceptance of his appeal on 31st January, 1966 by the District Judge, would be hit by the doctrine of lis pendens, also. Moreover, proceedings taken by the executing Court during the pendency of the appeal will be subordinate and dependent proceedings liable to be superceded by the order of remand passed by the District Judge on acceptance of the appeal by Charanji Lal. When after that remand the execution was dismissed owing to non prosecution by Sham Singh, the attachment and all subsequent proceedings automatically stood vacated.

In the above view of the matter, I would allow this appeal, and set aside the order of the learned District Judge. In the circumstances of the case, there will be no order as to costs.