Virendra Kumar, J. - (1.) -In the first appeal from order the defendant-appellants are seeking setting aside of the exparte decree dated 19-9-86 passed in the Regular Suit No. 28 of 1985 of the court of Small Causes, Barabanki and for restoration of the suit.
(2.) PETITIONER Bhupendra Singh, has filed writ petition no. 3820 of 1987 for recovery of possession over the property purchased by him in the auction sale in execution of the exparte decree. The appeal and writ petition have been heard together and are being disposed of by this common judgment. Punjab National Bank, Barabanki, the plaintiff-respondent no. 1 filed a suit for the recovery of Rs. 10,35,604/- against the defendant-appellant no. 1 M/s. Sardar Cold Storage and Ice Factory (which was a partnership firm) and its partners namely defendant-appellant no. 2 Indra Singh, defendant-appellant no. 3 Sarwjit Singh and the defendant-respondent no. 4 Amar Jit Singh as well as other defendants-respondents (as guarantors) on the basis that the firm and its partners had taken loan from Punjab National Bank for which the defendants other than the partners had stood guarantors but, they defaulted in repayment of the loan. The suit was filed on 25-2-1985. On the same date the court ordered for "issue summons against defendants fixing 14-4-85 for written statement and 18-4-85 for issues." On the basis of this order summons were issued to them by registered post with acknowledgement due at their residential address which were of the places other than district Barabanki except the firm to which ...........................(sic) its office in Barabanki on 18-4-85, which was the date for framing of issues, the court held that all the defendants were sufficiently served. As no written statement was filed in the case, the suit was ordered to proceed exparte against the defendants and 30-4-1985 was fixed for exparte evidence, on 30-4-85 affidavit was filed from the side of the plaintiff, arguments were heard and exparte judgment was delivered decreeing the suit of the respondent no. 1 exparte. The three present appellants, defendants jointly applied for setting aside the exparte decree Another application to the same effect was moved by a few other defendant-judgment debtors. Both the applications for setting aside the exparte decree were dismissed on 19-9-86. Against the order the present appeal is preferred by the three defendants-appellants only. The interim order of stay of confirmation of auction sale of the Cold Storage and Ice Factory with its land was passed by this court on 2-3-1987 but the same was vacated on 16-4-87. In execution of the exparte decree, the Cold Storage and Ice Factory with its land were attached on 5-8-85. The same were sold by Public auction on 2-3 March, 1987, after issue of notice and proclamation. The highest bid for Rs. 13,50,000/- was of one Bhupendra Singh. On 20-4-87 the sale was duly confirmed by the concerned court which issued final certificate of sale on 14-5-1987 in favour of Bhupendra Singh, who could not get possession over the purchased property as the same was stayed by the Civil Judge, Barabanki in view of the High Court's order dated 24-4-1987 (in the instant appeal filed on 19-12-86) for maintaining status-qua between the parties regarding the possession of the sold property This order of the High Court for maintaining status-quo was subsequently extended. Bhupendra Singh the auction-purchaser filed writ petition no. 3820 of 1987 in this Court for delivery of the possession of the said property to him after quashing the order of stay of delivery of possession passed by the Civil Court in view of the High Court's order for maintenance of status- quo. In this writ petition the aforesaid partnership firm, its partners and guarantors to the loan as well as Punjab National Bank, Barabanki, besides the execution court of the Civil Judge, Barabanki, have been impleaded as the opposite parties. Notices have been served on the opposite parties.
(3.) IT is important to note that in proceedings for execution of the exparte decree in question objections under section 47 CPC were filed by the judgment debtor's Cold Storage and Ice Factory and as well as its partners Indra Singh and Sarwjit Singh who are the only appellants before this Court. No other defendant-judgment debtor appears to have filed any objection under section 47 CPC. The objections under section 47 CPC were filed on 4-11-85. The objections under section 47 CPC were dismissed with costs on 17-10-1986 by the Civil Judge before whom the execution proceedings were pending and that order became final. The judgement-debtors including the partnership firm, its partners and guarantors, therefore, cannot take up now objection against the execution proceedings. The judgment-debtor did not apply under Order 21 Rules 89 to 92 CPC for setting aside the sale. Consequently, auction sale in favour of the petitioner Bhoopendra Singh was to become absolute and the court was to grant a certificate of sale as required under Order 21 Rule 94 CPC. As already mentioned above, this is what actually happened in the case in as much as the sale was confirmed on 20-4-87 and the sale certificate was issued on 14-5-87. After 16-4-87 there was existing no order of stay in respect of the sale or confirmation of the sale. Title of the purchaser Bhupendra Singh who was a stranger and not party to the suit, related back to the date of the sale in respect of the auction property and the property vested in him since then. He was a bonafide purchaser. He cannot be divested of his interest and title to the property irrespective of the result of the instant appeal for setting aside the exparte decree. In this connection reliance can be placed on the case of Janak Raj v. Gurdial Singh, AIR 1967 SC 608. Order 21 Rule 95 provides for delivery of possession of the auctioned property of the judgment debtor to the auction purchaser. The petitioner Bhupendra Singh, therefore, became entitled to delivery of possession of the property purchased in the auction sale. Writ petition is, therefore, to succeed. Case of Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989 cited from the side of the opposite parties in the writ petition remains of no avail to them for the reason that in that case the Decree Holder himself was the auction purchaser. When the auction purchaser happens to be a stranger who is not party to the regular suit and the auction sale stands confirmed in his favour, together with the sale certificate having been issued to him, his interest in the purchased property stands on a footing different from that of an auction purchaser who happens to be the Decree Holder as well. Having regard to the circumstances of the case, the interest of third party viz. Bhupendra Singh, the bonafide purchaser for value in auction sale of immovable property, cannot be allowed to fluctuate with the fate of the proceedings of setting aside the exparte decree. His interest and title to the purchased property stands protected and safeguarded under law.;