LexSHAUKAT HUSSAIN ALIAS ALI AKRAM & ORS. versus SMT. BHUNESHWARI DEVI (DEAD)) BY L. RS. & ORS.
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SHAUKAT HUSSAIN ALIAS ALI Al\RAM & O~. A v SM'I'. BHUNESHW ARI DEVI (Dead)) by L. RS. & ORS. August 25, 1972 [K. S. HEGDE, A. N. G!lOVER AND D. G. PALEKAR, JJ.] B Code of Civil Procedure and Order XX/ rule 29--'Constructi7'n of- Execution Court's jurisdiction to grant stay of 11roceedings where decru mu been granted by another court-Conditions for exercis. of powu .untl~r· rule. The respondent obtained a money decree against the appellants fram lhe court of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction. The decree was transferred for execution to the Court of Munsif !st at Gaya. The judgment-debtors filed a Title Suit in the court of Munsif !st for setting aside the decree passed by the Small Cause Court on the ground that it was fraudulent, illegal and without jurisdiction. The appellants also filed two petitions before the Munsif-one for an injunc- tion againot the respondent restraining her from proceeding with executio• and the other 'for staying the further proceedings in the execution case under Order XX! Rule 29 C.P.C. The Munsif issued ex-parte orders oa the two applications on the same day namely May 11, 1962. The injunc- tion was recalled on June 2, 1962 because the requisites were not filed for issue of show cause notice to the respondent. The respondent decre• holder who was not aware th•t there were two ex-parte orders informed the executing ccurt on April 10, 1963 that the order of stay passed in the Title Suit had been recalled for non-filing of the requisites and prayed for proceeding with the execution. The executing court. thereupon passed a• order vacating the order of stay and calling upon the respondent decreo holder to take further steps. In due course the property in dispute wai; attached and sale proclamation was issued. The appellants filed an ob- jection in the Court of the Munsif in the pending Title. Suit requesting the court to clarify whether the order of stay made by it on May 11, 1962 was still subsisting or not. The court held the order to be subsisting since it had not been withdrawn but made' it conditional on deposit df a •ecurity of Rs. 550 in the execution case. The execut.!ng court was in- formed about this order and in due course the executing court fixed 5th August 1%3 for furni·shing security. · Since the security was not deposit- ed by that date the property was sold on 6th August 1963 under the pro- clamation already issued. It was purchased by· the decree-holder- " espondent with the permission of the court. On an application by tho appellant judgment-debtors un.der s. 47 of the Code of Civil Procedure lhe Munsif set aside the sale as illegal on the ground that the proclama- 1ion of sale had been issued when the stay of execution was still in exist- ence. The Subordinate Judge unheld the order. In second appeal the High Court held that the Munsif was incomoetent to stay execution of 1he decree and therefore the sale was legal. The sale was held valid oH the further ground that the security was not deposited by the due date. Ia appeal hv special leave to this Court it was contended on behalf of the appellants that (i) the property had been sold for paltry sum and this was 'bV itself sufficient to show that the sale was liable to be set aside: (ii\ 1he High Court was wrong in holding that the order of st>y was not pass- ,.d by a competent Court. Dismissing the appeal, c D F G H B c D F G H SHAUKAT v. BHUNESHWAR! DEVI (Palekar, J.) 102~ HELD: (i) The first conteQl.ion was not open to \he appellants on the materials on record. The application made to the executing court m thu pre.<ent .case by tho judgment-debtors was not one under Order XXI rule 90 C.P.C. Had it been the case that on account of fraud or material irregularity in conducting the sale, the sale required to be set aside, evidence would have been led on the point and there would have b~ " clear finding as to the substantial injury. The judgments of all the tbrea courts proceed entirely on the basis that the application was one under •ection 47 C.P.C. and not under Order XXI Rule 99 C.P.C. They do not deal with the question of material irregularity or fraud in the conduct of the sale, nor do they deal with the injury caused to the judgment-debtors. The only question which was agitated before the courts was whether th• sale was illegal in view of the facl that the execution proceedings had taken place during t
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