Muthukumarasamia Pillai vs Muthuswami Thevan

This Civil Miscellaneous Second Appeal is against the order of the Lower Appellate Court declining to grant an execution application of the

appellant under the following circumstances.

The appellant obtained a decree against one Muthuswami Thevan. In exection of that decree he attached certain property, brought it to sale and

purchased it in Court auction himself on 6th October, 1922. He was under the bona fide impression that the property belonged to his judgment-

debtor, whereas it has now turned out that it really belonged to a dayadi of the judgment-debtor of the same name. When the Court sale was

confirmed, satisfaction of the decree was recorded on 8th November, 1922. Appellant, having discovered his mistake on 18th December, 1922,

applied to the executing Court to have the sale and the proceedings of the Court in satisfaction set aside, and applied for further execution by way

of attachment and sale of the real property of the judgment-debtor. Both the Lower Courts have held that the application is put of time, holding

that the appellant cannot succeed unless he has the sale set aside under Order 21, Rule 91, Civil Procedure Code,the limitation for which

application is 30 days from the date of sale under Article 166 of the Limitation Act.

The appellant''s main contention is that the execution sale being ex hypolthesi a sale of property which was not the judgment-debtor''s property,

is void and without jurisdiction, and therefore it is not necessary for him to set it.aside at all. If this view is negatived, then he falls back on the

argument that, as his present application is an ordinary execution application, the time limit for which is three years, it is not governed by the thirty

days'' limitation prescribed for the application under Order 21, Rule 91, Civil Procedure Code.

As to the first contention, we are clear that the sale is not a void one. The argument put forward is that the Court has no jurisdiction to sell in

execution any property which is not the property of the judgment-debtor and Section 60 Civil Procedure Code, is called in aid.

We do not think that is the proper section which gives the Court power to attach and sell property in execution of a decree. That is merely a

section which enacts which species of a judgment-debtor''s property may be sold in execution of a decree. The more proper section is Section

51(b), which is general in its terms and empowers the Court on the application of the decree-holder, to attach and sell in execution ""any property"".

This section of course has to be interpreted with some common sense and does not mean that the Court is empowered to attach and sell property

which it and all the parties know before the attachment to be not the property of the judgment-debtor. The common sense interpretation is that the

Court has authority and jurisdiction to attach and sell in execution any property which the decree-holder puts forward as the property of his

judgment-debtor, for attachment and sale. If the contention of the appellant were accepted, it would mean that a Court in selling property in

execution gives a guarantee that the property sold is the property of the judgment-debtor, which is opposed to one of the fundamental principles of

Court-sale. It has been invariably laid down in this country and elsewhere that a Court-sale carries no guarantee that the property is the property of

the judgment-debtor, and that the auction purchaser takes the risk and bears the loss if it is subsequently discovered not to be the property of the

judgment-debtor. There is therefore no warrant for the proposition that a sale by the Court of property which subsequently turns out not to belong

to the judgmjent-debtor is void, and, in this view, it makes no difference that the auction purchaser is the decree-holder The principle of caveat

empitor will apply to the decree-holder auction-purchaser equally as to any other auction-purchaser. The appellant cites a ruling Radha Kishun Lal

v. Kashi Lal ILR (1923) Pat. 829 for the proposition that a decree-holder is in a more favourable position than a stranger auction-purchaser. But,

if the decree is satisfied, the decree-holder is no longer in the position of a decree-holde; his status has altered into that of auction-purchaser.

Suppose, for example, that he had had to pay more for the property than the decree amount. He is not the decree-holder in respect of that sum

and in the matter of any claim to refund of that amount on the sale being set aside he is only in the position of auction purchaser and could not

under the present law recover it unless he had applied within thirty days of the sale. We are not able to accept the distinction drawn in Radha

Kishuu Lal v. Kashi Lal ILR (1923) Pat. 829. In fact, it is one of the decree-holder''s duties to see that the property sold was the property of his

judgment-debtor, and if he makes a mistake he must take the consequence. The law does not permit him to treat his sale as a void sale and ignore

it and put in a further execution application as if it had never taken place. It cannot be reasonably contended that the question whether a Court has

jurisdiction or not to seil the property rests on the problematic decision of a problematic claim, and that a Court which allows a claim to property

sold thereby declares its own lack of jurisdiction in the proceedings of attachment and sale which led up to the claim proceeding. The logical result

of that would be that the Court had no jurisdiction to decide the claim and therefore no jurisdiction to decide that it had no jurisdiction, a topsy

turvy result.

It follows then that before appellant can again apply to execute the decree, which has been recorded as satisfied by the previous Court sale, he

must have the sale set aside, the ground for the application being naturally that his judgment-debtor had no saleable interest in the property sold. To

such an application Order 21, Rule 91 in terms applies and it must be put in within thirty days of the sale. Admittedly, appellant''s application was

not put in within thai-time. He says, however, that because his main relief sought for is further execution, he is entitled to a larger period of limitation

far such a further execution application, and puts forward the analogy of a suit for possession by a person who cannot get possession unless he sets

aside an adoption, in which case it has been held by the Privy Council that the limitation for the suit is not the lesser period for the suit for a

declaratory decree that the adoption is invalid but the larger period of twelve years. Thakur Tirbhuwan Bahadur Singh v. Raja Rameshar BakKsh

Singh and Velaga Mangamma v. Bandlamndi Veerayya. We can see no analogy between that case and the present. In the present case we are

concerned with the processual law which obviously prohibits execution being taken out for a satisfied decree unless the proceedings which resulted

in the record of satisfaction are set aside, and the same law says that such proceedings can only be set aside by an application within 30 days of

the sale. Appellant cannot get round this limitation period by merely putting in a fresh execution application. The whole purpose of Article 166 will

be defeated if such a contention is upheld. When no application has been put in within the time fixed in Rule 91, the sale is confirmed and becomes

absolute under Rule 92, and no one can disturb it on the grounds mentioned in Rule 91

The appellant relies strongly on a passage in a decision of the Privy Council in Thakur Barmha v. Jiban Ram Marwari. In that case a share of a

Mahal had been proclaimed for sale subject to a mortgage and it was pleaded that, notwithstanding the words of the proclamation, the sale was

not subject to the mortgage, since a correction had been published before the sale in the local Gazette. The Privy Council held that what was sold

was what was proclaimed, and then remarked:

If by a mistake the wrong property was attached and sold, the only course was for the decree-holder to commence execution proceedings over

again.

No question of the period of limitation within which this could be done, and no question whether the sale was a void sale and could be ignored,

was raised in that case, and we do not therefore find it of any assistance. Nor does the case in Sivarrama v. Rama help. That turn''ed on the

language of Section 315 of the Old Civil Procedure Code, which gave an auction purchaser two chances of recovering his money if the judgment-

debtor had no saleable interest in the property sold, viz., a chance u/s 313 within thirty days before the confirmation of the sale, and another u/s

315 by application after the confirmation of the sale. But the latter remedy has been omitted in the present Code and, therefore, is no longer

available. This is clearly pointed out in Tirumalaisami Naidu v. Subramanian Chettiar, Rant Sarup v. Dalpat Rai and Habib-ud-din v. Hatim Mirza.

The ruling in Ramineedi Venkata Appa Rao v. Lakkoju China Ayyanna was also governed by the provisions and principles of the old Civil

Procedure Code. The other cases cited by the appellant seem to us to have no useful bearing on the matter.

Respondent contended before us that no C.M.A. lies. Even if it does, we consider that the Lower Appellate Court was right and dismiss this

appeal with costs. The Civil Revision Petition is also dismissed.