TMI Blog1983 (10) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... th petitions under Art. 227 of the Constitution, we deem it necessary to give the reasons therefor. It appears that the property belonging to the surety Mohd. Salam comprised of a house situate at Katra Sheikh Chand, Lal Kuan, Delhi was sold by the Subordinate Judge, Delhi in execution of an ex parte decree in favour of Mohd. Mustaqim due to the failure of the judgment-debtor Hakim Mazhar-ud-Din to satisfy the decree on May 24, 1972. On June 9, 1972 the surety made an application under s. 151 of the Code of Civil Procedure, 1908 without specifying whether it was under O.XXI,r. 90 The learned Subordinate Judge by his order dated June 10, 1972 treated the application to be under O.XXI, r. 89 and the surety opted to elect it as such and pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Subordinate Judge by his order dated November 23, 1972 held that there was no question of allowing the substitution of the name of the petitioner by the Court under its inherent powers. On December 15, 1972 the petitioner moved another application under s.151 of the Code for setting aside the sale on the ground that there was material irregularity in publishing and conducting the same and also to record satisfaction of the decree and set aside the sale. That application of his was disallowed by the learned Subordinate Judge by his order dated November 9, 1973 on the ground that his earlier order dated November 23, 1972 holding that the application made by the surety purporting to be under O.XXI, r.89 stood disposed of as he did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the judgment-debtor under O.XXI, r.2 after an auction- sale is held in a case where a third party's interest intervenes. In such a case, the Court has no alternative but to confirm the sale under O.XXI, r.92 of the Code. In Nanhelal Anr. v. Umrao Singh, the Judicial Committee of the Privy Council in dealing with o.XXI, r.2 of the Code held that an adjustment between the decree-holder and the judgment-debtor come to at any time before the confirmation of an execution sale cannot nullify the decree by taking away the very foundation of the Court's power to execute the decree viz. the existence of a decree capable of execution. In dealing with the question, the Privy Council observed: In the first place, 0.21, R.2, which provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one hand and the auction-purchaser, the decree-holder's representative, on the other alleging that there had been a fraud perpetrated by the decree-holder in causing the sale to be held, with a prayer for recording satisfaction of the decree under O,XXI,r.2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell within the purview of s. 47 which prior to February 1,1977 was appealable because then a decision under s. 47 was deemed to be a decree under s. 2(2) of the Code, and therefore the petitioner had the remedy of an appeal to the District Judge. Even if no appeal lay against the impugned orders of the learned subordinate Judge, the petitioner had the remedy of filing a revision befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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