Sheo Sampat vs Keshonath Misra and Another

P.N. Goyal, J.—This is an appeal against the order dated 18-10-1968 passed by the Civil and Sessions Judge, Gyanpur.

Chandra Bhushan Misra obtained an ex parte decree for possession on the basis of a sale deed (in suit No. 84 of 1965) against Kesho Nath Misra Respondent. In execution of the ex-parte decree, he obtained possession through Court Amin on 24-11-1965. Then, on 20-12-1965 Chandra Bhushan Misra sold the house to Sheo Sampat Appellant. The house is in Gopi Ganj. Kesho Nath Misra was living in Obra. In the early 1966 Kesho Nath Misra moved an application for setting aside ex-parte decree. The ex-parte decree was set aside on 4-4-1966. Then on 16-4-1966 he moved application for restitution of possession u/s 144 Code of Civil Procedure. The trial Court did not order restitution of possession but ordered that Kesho Nath Misra should get the sum of Rs. 2,000/-from Chandra Bhushan Misra, i.e. the amount for which he had sold the house to Sheo Sampat Appellant. Kesho Nath Misra filed an appeal. His appeal was allowed by the Civil and Sessions Judge subject to his paying Rs. 825/-to Sheo Sampat Appellant because after having purchased the house Sheo Sampat had spent a sum of Rs. 825/-in repairs of the house.

Sri G.P. Bhargava, learned Counsel for the Appellant contended that the Appellant was a bonafide purchaser and, therefore, specific restitution should not have been ordered by the Civil and Sessions Judge. He placed reliance on the case of Mani Lal v. Ganga Prasad 1951 AWR 20. In this case restitution against auction purchaser, was not allowed because he was a bonafide purchaser. The relevant observation is: ".... The result would be that in all cases in which an appeal was filed it would be difficult to hold a sale in execution of the decree which was the subject matter of the appeal." It will thus be seen that sanctity was attached to an auction sale and as such the bonafide auction purchaser was given relief against restitution. The same sanctity cannot necessarily be attached to a private sale.

Reference was also made to the old case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan ILR 10 All 166 (P.C). It was also a case of auction sale. In this case a distinction was drawn between decree holder auction purchaser and a third person auction purchaser.

Sri Bhargava also referred to the case of Gopi Lal and Another Vs. Jamuna Prasad and Others, . In this case there was a mortgage decree. In pursuance of the decree, properties were sold in execution on 14-5-1943. Then on 26-2-1946 the decree holders obtained possession through the Court. The decree holders then sold the property on 10-5-1948 to one Raghunath Mahto. There was a miscellaneous appeal which was decided on 15-12-1944. In this appeal there took place a compromise between the decree holders and the judgment debtors. Consequently, an order was passed reading:

By consent of parties, the decree under execution will be executable for Rs. 2,200/-only which includes interest and costs up-to-date. In default of payment this amount will carry interest of 6 p.c.p.a.

The judgment debtors did not deposit the amount within a reasonable time of this compromise. They deposited the amount about four years later on 29-11-1948 and about 7 months after the property was sold to Raghunath Mahto. After having deposited the amount the judgment debtors applied for restitution on 22-2-1949. In these circumstances restitution was refused to the judgment debtors.

In the instant case, the events have taken place rather quickly. Ex-parte decree was passed on 23-10-1965. The decree holder obtained possession through Court Amin on 24-11-1965. Within a month thereof he sold the property to the Appellant. The Appellant, who entered into the witness box, had the check to say that he was not aware of the exparte decree. This shows his carelessness to know about the exparte decree in execution of which the decree holder had taken possession and then thought of selling the house. This clearly speaks of want of bonafide on his part.

Sri Bhargava referred to the case of Minto Lal v. Narain Das 1966 ALJ 510 in which it was held that in proceeding for restitution the court has to consider the equities arising in the case and that such orders be passed which do justice to both the parties. In the instant case while permitting specific restitution the learned appellate Court has made the judgment debtor to pay the amount which the Appellant had spent on the house in question.

In view of the above, there is no room for interference with the order passed by the learned appellate Court.

The appeal is dismissed. However, costs of this Court shall be easy.