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PETITIONER: TASADDUG HUSSAIN KHAN

       Vs.

RESPONDENT: SHIV NATH SAHU (DECEASED) THROUGH LRS. AND ANOTHER

DATE OF JUDGMENT:       26/03/1998

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal is directed against the order passed by the Allahabad High  Court on  April  17,1980  in  Second  Appeal No.2269/1968  being   connected  with   Second  Appeal   No. 2270/1968.  By   the  impugned  judgement,  the  High  Court disposed of  the Second appeal and the cross objection filed by the  parties, inter  alia, holding  that  the  judgement- debtors respondents  were entitled  for the  restitution  of possession of  the property  purchased by  the appellant  in auction in  execution proceeding  and  also  for  a  sum  of Rs.20,309/- from  the auction  purchaser-appellant by way of damages and  mesne profits  subject to payment of Rs.8,000/- by the said judgement -debtors to the auction purchaser.      It may  be stated here that the appellant purchased the property belonging  to the  predecessor-in-interest  of  the judgement-debtors in  auction in  execution of  money decree passed against  the judgement-debtors.  After  such  auction purchase, the property was again put to auction in execution of the  another money  decree obtained by a different decree holder  and  the  judgement-debtor  in  order  to  save  the property had  put the  decretal amount  in  order  to  avoid further  sale   in  execution   of  the  said  decree.    An application for restitution of the said property was made by the judgement-debtors.  Such  application  was  opposed  but ultimately the order of restitution under Section 144 of the Code  of  Civil  Procedure  was  passed  in  favour  of  the judgement-debtors. An  appeal was  taken  by  the  appellant auction purchaser  against such  order and  the  appeal  was allowed by  order dated  October 31,  1952 and  the case was remanded  .   After  the  remand,  auction  purchaser  filed objection  to   the   judgement-debtors’   application   for restitution,  inter   alia,  contending   that  the  auction purchaser was entitled not only to the payment of Rs.8,000/- being the  sale price but also Rs.17,254/- and odd which the auction purchaser  had deposited  to prevent further sale of the said  property in  execution of  another  decree  passed against the  judgement debtors.  The auction  purchaser also claimed Rs.3500/-  as cost  of repairs and Rs.50/- per annum for such repairs since 1942. The restitution application was allowed and  the executing  court directed  for delivery  of

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possession of the disputed property to the judgement-debtors together with  a sum  of Rs.65,565/-  on account  purchaser- appellant.      Being aggrieved  by such  order of the executing court, the auction  purchaser-appellant preferred an appeal and the judgement-debtors also  filed appeal against the said order. Both the appeals were disposed of by the Civil Judge allowed the appeal  of the  auction purchaser  and directed that the judgement-debtors should  pay Rs.8,000/- along with interest which comes to Rs.22,400/- and also a sum of Rs.19,723/- and odd but  no direction  was given  for payment of interest on the aforesaid  amount.   The appeal of the judgement-debtors was dismissed.  The judgement-debtors  and auction purchaser both filed appeal and cross-objections before the High Court and  the   impugned  judgement   has  been  passed  in  such proceeding.      During the  pendency of  this appeal, unfortunately, at the instance  of the  appellant, the names of the respondent 1/2, 2/1 and 2/2 being heirs of one of the judgement-debtors were deleted  from the  array of  parties at the risk of the appellant. Subsequently,  a further order was passed by this Court directing  that the  attention of the Court should  be drawn  about   such  deletion   and   consequences   flowing therefrom.      When the  appeal was taken up for hearing, Mr.Mehrotra, the learned  senior counsel  appearing for  the respondents, took a  preliminary objection  that the decree passed by the High Court  in the  restitution  application  which  is  the subject matter of challenge in the instant appeal, cannot be maintained in  the absence  of some of the judgement-debtors whose names  were deleted  at the risk of the appellant. The said judgement-debtors  jointly  obtained  the  said  decree holders, no  effective order  can be  passed in this appeal. The decree  obtained by  the judgement-debtors  is  a  joint decree and  not divisible. Therefore, if any order is passed by the  High Court the same will bring inconsistent position vis-a-vis the  respondents on  record and decree holders not on record.      Mr.Ray, the  learned senior  counsel appearing  for the appellant,  however,   has  streneously  contended  that  in equity, the  order passed  by the High Court is unreasonable and  the  auction  purchaser  has  been  fastened  with  the liability which  was not  payable by  the auction purchaser. Mr.Ray has  contended that  it has  not been held that there was  any  illegality  or  fraud  practised  by  the  auction purchaser in  the auction  sale proceedings.  The Judgement- debtors although  had no  liability to  pay  the  amount  to satisfy the  other money decree passed against the judgment- debtors, but in order to prevent further auction of the said property, in  the event of non payment of decretal amount by the judgement  debtors, the auction purchaser had to pay the decretal amount  on behalf of the judgement debtors. Mr. Ray has submitted  that judgement debtors in the first execution proceeding  are   on  record.   Therefore,  this  appeal  is maintainable even if other judgement debtors in whose favour order of  restitution was  made, are  not on  record in this appeal.      We are,  however, unable  to accept the said submission of Mr.Ray.  The question  of claim  and counter claim of the parties need not be considered on merit because the impugned decree passed in the restitution proceeding has been made in favour of  the judgement-debtors  whose appeals were allowed by the  High Court.  Therefore, any  variation of  the  said decree is  no  possible  in  the  absence  of  some  of  the judgement debtors in whose favour impugned decree was passed

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by the  High Court.  In our  view, Mr.  Mehrotra has rightly contended  that   the  decree   in  the   instant  case,  is indivisible and such decree cannot be interfered with unless all the  parties in  whose favour such decree was passed are before this  Court. This appeal is, therefore, dismissed but without any order as to costs.