- (1.) This is an application in revision Under Section 115 of the Code of Civil Procedure.
(2.) The applicants Tej Bahadur Singh and others filed an application Under Section 12 of the Agriculturists' Relief Act for redemption of a mortgage. The trial court dismissed the suit. There was an appeal and the appellate court partly decreed the suit and partly dismissed it. The applicants submitted to the decree. The applicants made an application to the trial court for execution of the decree for possession over the part of that property. A parwana was issued by the trial court for placing the applicants in possession over the property which had been decreed to the applicants. This was on 12-4-1951. The Amin was to make the delivery upto the 17th of April and submit his report by 12-5-1951. In response to the parwana the Amin effected the delivery of possession over the property on 17-4-1951. Something however happened before this date. On 16-4 1951 the mortgagee opposite party applied to the trial court that execution proceedings be stayed because we would go in second appeal to the High Court. The execution court thereupon issued a direction to the Amin to return the parwana unexecuted and at the same time directed the mortgagee to bring a stay order from the High Court within 15 days. The order recalling the parwana was however not received by the Amin till 19-4-1951 and as already stated he had effected delivery of possession two days before that date. Ultimately the High Court issued a stay order on 30-4-1951. Thereupon the mortgagee made an application to the execution court that he may be put back in possession of the property over which the Amin had delivered possession to the applicants. The court below had acceded to this prayer and had ordered the mortgagee to be put back in possession of the property. Against this order the mortgagors have come up in revision to this Court and their contention is that the delivery of possession by the Amin on 17-4-1951 was perfectly valid and the court below had no jurisdiction to order redelivery of possession to the mortgagee opposite parties.
(3.) In my opinion the contention of the learned Counsel for the applicants is well founded. The Amin derived his authority to effect delivery of possession from the order of the court. By the order dated 12-4-1951 he was authorised to effect delivery of possession. When the court directed him to return the parwana it meant by necessary implication that the parwana was to be returned unexecuted provided it had not been executed already. If the parwana had been executed before the Amin received the order of the court recalling the parwana in my opinion, it cannot be said that the delivery of possession effected by the Amin was without authority. I (sic) the parwana in the present case as a direction to the Amin to return the parwana unexecuted provided it had not been executed before he received the countermanding order of the court. In this view of the matter there was no conflict between the order recalling the parwana and the action of the Amin delivering possession over the property in dispute. In the Full Bench case of Parsotam Saran v. Brahma Nand I.L.R. 50 All. 41 of this Court the High Court had issued an ex parte order staying sale of certain property but before the order could be communicated to the court below the property had been sold already and purchased by a third party. It was held that the sale was perfectly valid even though the order staying the sale was prior to the holding of the sale. But Mr. Justice Mukerji, who delivered the main judgment in the case, observed at page 50 of the report: A clear and substantial distinction must be drawn between case where the decree holder has made the purchase and where the purchaser is a third party acting in good faith. The decree holder cannot shake off his character as such merely by reason of auction-purchase, and he is bound by all orders passed in the case A stay order, therefore, will operate against him and it may be that a purchase by a decree holder will be set aside on the mere ground of the passing of a stay order. On the same principle, where a sale is held in execution of an ex parte decree the fact that the decree was subsequently set aside at the instance of the Defendant does not affect the title of a third party purchaser, though it does effect the title of the Plaintiff, if he makes the purchase. For a party to a proceeding must take subject to all orders passed in the case.;