TASADDUG HUSSAIN KHAN versus SHIV NATH SAHU (DECEASED) THROUGH LRS. AND ANR.

Citation: [1998] 2 S.C.R. 489 · Decided: 26-03-1998 · Supreme Court of India · Bench: G.N. RAY, G.B. PATTANAIK · Disposal: Dismissed
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Judgment (excerpt)

TASADDUG HUSSAIN KHAN 
A 
" f-
v. 
SHIV NATH SAHU (DECEASED) THROUGH LRS. AND ANR. 
MARCH 26, 1998 
[G.N. RAY AND G.B. PATTANAIK, JJ.] 
B 
---\ 
Code of Civil Procedure, 1908 : Section 144 
Restitution-Decree obtained by judgment-debtors jointly-Variation 
to decree in the absence of some of the judgment debtors-Permissibility of- c 
Money-Decree-Auction sale in execution of decree-Appellant auction 
purchaser-Respondents judgment-debtors-Decreetal amount deposited by 
judgment-debtors-Application for restitution of property filed by judgment-
debtors-Decree for restitution passed in favour of judgment-Debtors-
Executing court directed delivery of possession to judgment-Debtors as well 
as payment of mesne profits-High Court held that judgment-debtors D 
respondents were entitled for the restitution of possession of the property as 
well as mesne profits-Appellant auction purchaser preferred appeal before 
Supreme Court-During pendency of this appeal, at the instance of the 
appellant, names of some of the heirs of one of the judgment-debtors deleted 
from the array of parties at the risk of the appellant-Preliminary objection 
taken during hearing of the appeal that the decree passed by High Court was E 
not maintainable in the absence of some of the judgment-debtors whose 
names were deleted-Held any variation of the said decree was not possible 
in the absence of some of the judgment-debtors in whose favour impugned 
decree was passed by the High Court-As the decree in the instant case was 
indivisible such a decree cannot be interfered with unless all the parties in 
1 
whose favour such decree was passed were before this Court. 
F 
.. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3805 .of 
1983. 
From the Judgment and Order dated 17.4.80 of the Allahabad High Court 
in S.A. No. 2269 of 1968. 
G 
Tapas Ray, T. Sridharan and Tufail A. Khan for the Appellant. 
..;.. 
Rakesh Kumar Gupta for K.K. Gupta, Respondent No. I. 
R.B. Mehrotra, Dr. l.B. Gaur, Dileep Tandon for Respondent No. 3. 
The following Order of the Court was delivered : 
H 
489 
490 
SUPREME COURT REPORTS 
[1998] 2 S.C.R. 
A 
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 
'I-
,... 
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 a/ia, holding that the judgement-debtors respondents were entitled for 
B 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 
r -
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 
C 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 
D 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 
E 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 
F claimed Rs. 3500 as cost ofrepairs and Rs. 50 per annum for such repairs since 
•-
... 
G 
1942. The restitution application was allowed and the executing court directed 
for delivery of possession of the ·disputed property to the judgement-debtors 
together with a sum of Rs. 65,565 on accou
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