Decided on August 02,1954

Pullata Lakshminarayan Appellant
Bakkida Ramanna Respondents


Subba Rao, C.J. - (1.) THE second appeal is filed against the decree and judgment of the Court of the Subordinate Judge of Srikakulam confirming those of the District Munsif's Court Sompeta in O.S. No. 11 of 1949. The subject -matter of the suit is of the extent of 2 acres 10 cents of Government Zaroiti dry land described in the plaint schedule. It was originally owned by one Priya Chelamayya and others. They executed a mortgage deed in respect of the suit property in favour of Burla Yerrayya, the father of the 3rd Defendant. Burla Yerrayya filed O.S. No. 52 of 1938 on the file of the Court of the Distrit Munsif, Sompeta and obtained a preliminary decree therein. A final decree followed. In execution of the final decree, the plaint schedule items were brought to sale and they were purchased by the 1st Defendant on 23 -3 -1942 for a sum of Rs. 325 -0 -0. The said sale was confirmed on 15 -6 -1942. On 10 -11 -1942 he took delivery of possession. The Plaintiff who was the purchaser of the plaint schedule items from the mortgagors, and who was also impleaded as a Defendant in O.S. No. 52 of 1938 filed an application on 21 -4 -1942 for setting aside the ex parte decree. The ex parte decree was set aside on 31 -8 -1944. Thereafter he filed O.S. No. 11 of 1949 on 14 -12 -1948 for possession of the said items on the ground that by reason of the setting aside of the ex parte decree and also by reason of the subsequent adjustment of the suit claims, the Defendant did not acquire any valid title to the said items.
(2.) THE learned District Munsif and on appeal the learned Subordinate Judge rejected the claim and dismissed the suit. Hence the second appeal. The learned Counsel for the appellant, Mr. Dikshitulu contends that there is no (sic) essential distinction between an ex parte decree and a decree on merits, and therefore the decisions holding that the title of a third party purchaser in execution of a decree is not affected by the reversal of the decree, will not apply to a case of a purchaser in execution of an ex parte decree. To appreciate this argument, it is necessary to consider the principles on which the said cases based their decisions. In - 'Nanhelal v. Umrao Singh' : AIR 1931 PC 33 at pp. 35 -36 (A), the Judicial Committee had to consider the case of the effect of the adjustment of a decree under Order 21, Rule 2, Code of Civil Procedure, on the sale held in execution of the decree in favour of a third party. Their Lordships held that the third party was protected and the sale could not be set aside. The reasoning of their decision is found at pp. 35 -36 of the Report. It runs thus: When once a sale has been effected, a third party interest intervenes and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment -debtor can get rid of a sale, which has been duly carried out, are those embodied in Rule 89, viz., by depositing into Court the amount for the recovery of which the property was sold, together with 5 per cent. on the purchase money which goes to the purchaser as statutory compensation and this remedy can only be pursued within 30 days of the sale. Their Lordships made no reference to the cases under Rule 91 which has no application to the present case.
(3.) THIS principle was followed by Madhavan Nair J. in - 'Sorimuthu Pilai v. Muthukrishna Pillai' : AIR 1933 Mad 598 (E), where the learned Judge ruled that under Order 21, Rule 92, Code of Civil Procedure, where no application is made under Rules 89, 90 or 91 to set aside a valid sale, the Court is bound to confirm the sale and cannot refuse to do so on the ground that there was no subsisting decree at the time of the confirmation or on any other ground. This judgment was accepted and followed by Wadsworth J. in - 'Ambujammal v. Thangavelu Chettiar' : AIR 1941 Mad 399 (C). There, as in the earlier case, at the time the sale was sought to be confirmed, the decree in execution whereof the property was brought to sale was reversed by the appellate Court. Wadsworth J. points out at p. 401: There is no provision in the Code for the cancellation of a sale merely because of the cancellation of the decree and though it is in accordance with' justice that a person who has succeeded in appeal should get from the opposite party such restitution as is possible, there is no principle of justice whereby an innocent 3rd party who has purchased in a valid auction held by the court should be deprived of his property merely because the decree under which the sale was held has been cancelled in appeal.;

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