P L D 1971 Dacca 248 (PLP)

Mr. Ahmed Sobhan, the learned Advocate for the petitioners, in both the revisions, has raised four contentions before me :‑ (1) That the sale of the property in dispute to the opposite‑ parties 1 to 3 by the judgment‑debtors after the property was attached in Money Execution Case No. 128 of 1952 was void and hence the opposite‑parties 1 to 3 acquired no interest in the property and had no locus standi to institute the proceeding for setting aside the auction sale. (2) That the Urban Co‑operative Bank, the decree‑holder in Money Execution Case No. 67 of 1962, having not been impleaded in the proceeding for setting aside the sale, the proceeding was liable to be dismissed for defect of party. (3) That the application was barred by limitation. (4) That the relief prayed for, namely, for setting aside the sale of October 21, 1952, in Money Execution Case No. 128 of 1952 could not be effectively granted without setting aside the sale of May 14, 1963, in Money Execution Case No. 67 of 1962. As to the first contention. Money Execution Case No. 128 of 1952 was started on June 4, 1952, and the disputed property was attached on June 4, 1952. The property was conveyed to the opposite‑parties 1 to 3 by the judgment‑debtors on June 18, 1952, for a consideration of Rs. 4,

500. The contention of Mr. Sobhan is that the conveyance during the period of attach ment was void. Section 64 of the Code of Civil Procedure contains the law on the point which is to the following effect: "Section 64.‑Private alienation of property after attachment to be void. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment‑debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment." Though at the commencement of the argument Mr. Sobhan cited certain decisions to substantiate his contention that the transfer in favour of the opposite‑parties 1 to 3 was void, he ultimately abandoned the point. For he conceded ultimately in his usual candour that the transfer would be void against all claims enforceable under the attachment but in the present case the validity of the transfer could not be questioned on that ground. As to the question of defect of party that the Urban Co‑operative Bank, the decree‑holder in Money Execution Case No. 67 of 1962, was not joined as a party in the present proceeding it may be seen that the sale sought to be set aside is the sale of October 21, 1952 where to the Urban Co‑operative Bank was not a party, I agree with the learned Advocate for the opposite‑parties that the aforesaid Bank was not a necessary party in the proceeding. The trial Court noticed that the property which was transferred by the judgment‑debtors to the opposite‑parties 1 to 3 for a consideration of Rs. 4,

500. On June 18,1952, was valued at Rs. 75 only in the sale proclamation which the decree‑holder auction purchased on October 21, 1952 for a sum of Rs. 99 only. It was further noticed by the learned Munsif that Khagendra, who was the judgment‑debtor in the second sale, was the law clerk of the Co‑operative Urban Bank, the decree‑holder. The learned Munsif held that the opposite- parties 1 to 3 were admittedly in possession of the property since 19.19. The learned Munsif on an appreciation of the oral and the documentary evidence led in the case by the parties concluded that Khagendra, the decree‑holder, "has fraudulently suppressed all processes in connection with the Execution Case and the Execution sale and that there has been fraud in publishing and conducting the sale" and that the sale had been vitiated by fraud. The learned Munsif further held that the second sale of 14th May 1963, was "completely a collusive affair between Khagendra and Abul Kashem". The learned Munsif held further that the opposite‑parties 1 to 3 suffered substantial injury by reason of the sale and that they came to know of the sale for the first time on September 15, 1963, the day on which they were served the summons of Title Suit No. 43 of 1966. The learned Munsif accordingly held, further that the application was not barred by limitation. On appeal the learned Subordinate Judge substantially agreed with all the findings arrived at by the learned Munsif. The matter before me would have ended here being concluded by findings of fact but for the final question raised by Mr. Sobhan whether the relief could be effectively granted to the opposite‑parties 1 to 3 without setting aside the second sale. The question has been very elaborately argued by the learned Advocates for the parties. Accordingly to Mr. Sobhan, the second sale of 14th June 1963, in Money Execution Case No. 67 of 1962, is not void, but if at all, voidable, an unless it is avoided, the sale remains in force. From the premises, Mr. Sobhan argues that so long as the second sale remains in force no effective relief can be granted to the opposite‑parties 1 to 3 in the present proceeding for setting aside the first sale of October 21, 1952. In support of his contention he has placed reliance on the decision in the case of Mundla Pati Jagannadha Rao and others v. Rachapudi Basaivayya (A I R 1927 Mad. 835) in which it has been held inter alia that the Court's sale of a property which turns out not to belong to the judgment‑debtor is not void ab initio but only voidable. He has also cited the case of Muthu Kumarasamia Plllai v. Kuthushami Thevan (A I R 1927 Mad. 394) as well as the case of Gouri v. Ude and others (A I R 1942 Lah. 153) the facts of which are quite different from the facts of the present case. I am afraid the authorities cited do not really answer the question before me nor support the contention of Mr. Sobhan. For resolution of this question I may profitably refer to the principle laid down in Syama Prasad Roy Choudhry v. Horo Prasad Roy Choudhry and another (10 M I A 103 (P C)) In that case the facts were as follows. Tara Prasad in execution of a decree dated 12th August 1844 obtained the decretal dues from the judgment‑debtor Durga Prasad Roy Choudhry. The above decree was contrary both in spirit and terms to an order of Her Majesty‑in‑Council of 18th July 1849, made subsequently in an appeal in another suit between the same parties involving substantially the same rights, raising the same questions of law and facts and dealing with the same principal sum of which the interest was claimed and recovered by Tara Prasad in Execution of the decree. In 1857, Durga Prasad brought a suit to recover the sums realised from him by Tara Prasad in execution of that decree. The suit was dismissed and the decree of dismissal was upheld by the Sadder Court on the ground that no suitor action lay to recover the money realised under a decree that remained in force. An appeal was preferred from the decree of Saddar Court before the Privy Council. One of the questions raised before the Privy Council was whether the money having been paid under a decree of a Court of competent jurisdiction cannot be recovered in a new suitor action so long as the decree or judgment to which it has been recovered is subsisting and in force. The answer was it cannot be until the decree or judgment has been reversed. In resolving the question their Lordships of the Judicial Committee expressed themselves as under:‑ "There its no doubt that, according to the law of this country and their Lordships see no reason for holding that it is otherwise in India. Money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains enforce; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable either by summary process, or by a new suitor action. The true question, therefore, in such cases is, whether the decree or judgment under which the money was originally recovered has been reversed or superseded; and applying this test to the present case, their Lordships are of opinion, that the decree obtained by Tara Prasad against Doorga Prasad were superseded by the Order of Her Majesty‑in‑Council pronounced in the year 1849." Acting on the principle laid down in the above case it is not difficult for me now to hold that once the first sale in the instant case is set aside the second sale also falls through although no separate proceeding is instituted for setting aside the same. For plainly Khagendra, the judgment‑debtor in the second execution case, acquired no saleable interest in the property by virtue of his purchase in the first sale. The order setting aside the first sale in the proceeding under Order XXI, rule 90 clearly supersede the second sale in Money Execution Case No. 67 of 1962. In the view I have taken I derive considerable support from the decision in the Full Bench case of Jagesh Chandra Dutt v. Kali Charan Dutt (I L R 3 Cal. 30). The headnote bring out in substance the facts as well as the law laid down therein. The headnote runs:‑ "In a suit by the present defendant against the present plaintiff for enhancement of rent, the Courts of first instance and the High Court made decrees for enhanced rent. The Privy Council, in the year 1873, reversed those decrees, and held that the rent could not be enhanced. Before the date of the Privy Council judgment the present defendant obtained several other judgments for enhanced rent against the present plaintiff. No application was made by him for review of those judgments, but in 1875, he brought this suit to recover the difference between the amount of enhanced rent recovered and the fixed rent which he was bound to pay. Held by MacPherson, Markby, and Ainslie, JJ., following Shama Parshad Roy Chowdhry v. Horo Parshad Roy Chowdhry that the decrees for enhanced rent were superseded and that such a suit as the present one would lie." Mr. D. C. Bhattacharjee, appearing on behalf of the opposite -parties 1 to 3 referred to the case of Asutosh Goswami and others v. Upendra Prasad Mitra and others (21 C W N 564). In that case Mookherjee and Cuming, JJ. after having referred to certain reported cases of the United States and also the case of Shama Parshad Roy Chowdhry and the case of Jogesh Chandra held:‑ "It is a general rule that upon the reversal of a judgment, order or decree, all connected or dependent judgments or orders fall with it, specially judgments subsequently entered and dependent thereupon; but this rule does not operate by implication to set aside a distinct and independent judgment of proceeding though it form a part of the same litigation . . . . . . Whether a judgment or order is a dependent judgment or order, that is, is merely ancillary and necessary to another judgment, so as to share its fate and fall to the ground along with it, must be determined from the nature and scope of the proceedings and may, as some of the cases in the books show, give rise to questions of considerable nicety and consequent divergence of judicial opinion." I respectfully agree with the above observation. It must be held therefore that the second sale of 14th June 1963 in Money Execution Case No. 67 of 1962 is of no legal consequence. The contention raised in that behalf by Mr. Sobhan is of no substance. In the result I discharge both the rules but without any order as to costs. Rules discharged.