H. N. Kapoor, J. - (1.) THIS appeal is directed against the order of the Civil Judge, Aligarh dated 24-10-1972 passed in Civil Appeal No. 163 of 1972 allowing the appeal and reversing the order of the learned Munsif for restitution against the respondents under section 144 of the Code of Civil Procedure.
(2.) THE facts giving rise to this appeal are as follows :- Sampat Lal, respondent no. 2, obtained a decree for recovery of money against a firm M/s. Rameshwar Dass Ram Narain. Ram Narain, one of pertners of the firm, had died during the pendency of those proceedings and the decree was ultimately passed against the appellant who was the widow of Ram Narain and was substituted as his heir. She was shown as a judgment debtor but it was in respect of the assets of Ram Narain in her hand. In execution of the decree, Sampat Lal got the mortgagee rights in respect of the house in dispute attached and sold. Smt. Dayawati, present appellant, then filed an objection under Order 21 CPC against the sale. That objection was dismissed. In appeal, confirmation of the sale was stayed. Ultimately, the appeal was also dismissed. On 2-6-1970, Smt. Dayawati again filed an objection under section 47 CPC claiming that she was the usufructuary mortgagee of the property in dispute and Ram Narain had no interest in this property and the property was wrongly attached and sold in execution of the decree. She also stated that she had nothing to do with the firm M/s. Rameshwar Dass Ram Narain. That objection was over-ruled and on the same date, executing court confirmed the sale. Smt. Dayawati then filed an execution appeal (Civil Appeal No. 145 of 1970) which was allowed on 20-8-1971 by the Judge Small Cause Court. Her objection under section 47 CPC was allowed and the order of the executing court was set aside. In the meantime, respondent no. 2, who was the decree holder-auction-purchaser of mortgagee rights took possession of the property in dispute. The same was then redeemed by Champa Ram, respondent no. 1, from Sampat Lal and Champa Ram took possession of the property after redeeming it in August, 1970. After obtaining the order of the appellate court in Civil Appeal No. 145 of 1970 in her favour, Smt. Dayawati filed an application under section 144 CPC claiming restitution against both the respondents Sampat Lal and Champa Ram. That application was allowed by the learned Munsif by his order dated 13-5-1972. It was ordered that Smt. Dayawati is entitled to the restitution of her mortgagee rights and to recover rent at the rate of Rs. 150/-per month from the opposite party with interest at the rate of Re. 1/-% per month. It is stated that she obtained formal possession of the property on 27-5-1972 on the basis of this order. The property was, however, occupied by tenants. Civil Appeal No. 163 of 1972 was filed by Champa Ram against the order of the Munsif dated 13-5-72 and the same was decided in favour of Champa Ram by the Civil Judge, Aligarh on 24-10-1972. The learned Civil Judge reversed the order of the learned Munsif dated 13-5-1972 and dismissed the application under section 144 CPC. It is against that order that the present appeal has been preferred by Smt. Dayawati.
(3.) SRI G. P. Bhargava, learned counsel for the appellant, states that under the stay orders passed by the lower appellate court and the High Court, rents are being deposited in the Court after 27-5-1972. The learned Civil Judge took the view that restitution could not be claimed against Champa Ram when he had obtained possession from the purchaser of mortgagee rights by paying of the mortgage debt. He also observed that it is settled law that restitution cannot be obtained under section 144 CPC against a bonafide purchaser for value at an auction sale. This is exactly the point which arises for decision in this appeal. Sri G. P. Bhargava, learned counsel for the appellant, has argued that the learned Civil Judge has misinterpreted the decision of the Hon'ble Supreme Court in the case of Janki Rai v. Gurdial Singh, 1967 SC 608 and the decision of this court in the case of Mani Lal v. Ganga Prasad, 1951 AWR 20. In 1951 AWR 20 all that was held that restitution could not be claimed against a stranger who had purchased the property bona, fide in an auction sale even though he knew that the judgment debtor had filed an appeal against the decree. In this case, reference was made to the case of Zainul Abdin Khan v. Muhammad Asghar Ali Khan, 10 All. 166 and particular mention was made to the distinction drawn by their Lordships of the Privy Council between a case in which the decree holder was the auction purchaser, who was not protected when the decree was set aside or modified and the case of a stranger auction-purchaser. In 1967 Supreme Court 608 their Lordships of the Supreme Court also referred to the Privy Council case and made the following concluding observations :- "The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sale in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified." That was also a case of stranger auction purchaser and the sale was ordered to be confirmed under Order 21 Rule 92 CPC. The Supreme Court was not considering any restitution application under section 144 CPC. Their Lordships made the following observations which will show that they kept the question open even with regard to stranger auction purchaser for restitution under section 144 CPC was concerned :-- "We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under Sec. 144 of the Code of Civil Procedure and express no opinion thereon." ;