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Binayak Swain Versus. Ramesh Chandra Panigrahi And Another

Civil Appeal No. 804 of 1963 - Dated:- 10-12-1965 - Gajendragadkar P.B., Wanchoo K.N. And Satyanarayanaraju P., JJ. K. R. Chaudhuri, for the appellant. C. B. Aggarwala, B. Parthasarathy, J. B. Dadachanji, O.C. Mathur, and Ravinder Narain, for the respondent JUDGMENT: Ramaswami V., This appeal is brought by special leave on behalf of the judgment-debtor against the judgment of the Orissa High Court, dated January 3, 1961 in Letters Patent Appeal No. 3 of 1959. The deceased plaintiff filed Origina .....

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rt which set aside the decree of the District Judge on November 11, 1946 and remanded the suit to the lower appellate court for disposal. The lower appellate court in its turn remanded the suit to the trial court by its judgment, dated April 11, 1947. In the meantime the original plaintiff died and the present respondents were brought on record as his legal representatives. The suit was again dismissed by the trial court on November 29, 1947 but on appeal the Additional Subordinate Judge set asi .....

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that date the respondents have been in possession of the properties and enjoying the usufruct. After the decree of the High Court, dated November 11. 1946 in Second Appeal No. 100 of 1943 the appellant made an application for restitution in the Court of the Additional Munsif in Miscellaneous Judicial Case No. 34 of 1947. The plaintiff obtained a stay of the hearing of the Miscellaneous Judicial Case from the Court of the Additional District Judge but on March 30, 1948 the order of sup, Cl/66-3 .....

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appeal before the Subordinate Judge of Berhampur who allowed the appeal and set aside the order of restitution. The appellant took the matter before the High Court in Miscellaneous Appeal No. 24 of 1958 which was allowed by P. V. Balakrishna Rao, J. on October 3, 1958 and it was ordered that the restitution of the properties should be made to the appellant subject to the condition that he must deposit the amount decreed in favour of the plaintiff-decree holder. The order of the learned Single J .....

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disposal under the provisions of s. 144 of the Civil Procedure Code which states as follows 144 (1) Where and in so far as a decree or order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for t .....

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he provisions of this section. We are unable to accept this argument as correct. The properties of the appellant were sold in execution at the instance of the respondents who were executing the ex parte decree passed by the District Judge on March 9, 1943. In this execution case, the properties of the appellant were sold and the respondents got delivery of possession on May 17, 1946. It is true that the suit was eventually decreed after remand on August 27, 1954 by judgment of the High Court, bu .....

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of the application for restitution, therefore, the appellant was entitled to restitution,. because on that date the decree in execution of which the properties. were sold had been set aside. We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff' at the time when the application for restitution was made. The princ .....

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ties, so far as they can berestored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. It should be noticed, in the present case, that the properties were purchased' by the decree-holder himself in execution of the ex-parte decree and not by a stranger auction-purchaser. After the ex-parte decree was set aside in appeal and after a fresh decree was passed on remand, the sale held in execution of the ex-parte decree becomes invalid a .....

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ime of the sales, but afterwards so modified, as the result of an appeal to Her Majesty in Council, that, as it finally stood, it would have been satisfied without the sales in question having taken place. The judgmentdebtor sued both those who were purchasers at some of the sales, being also holders of the decree to satisfy which the sales took place, and those who were bona fide purchasers at other sales, under the same decree, who were no parties to it. The Judicial Committee held that, as ag .....

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, and at a time when that decree was a valid decree, and when the order for the sale was a valid order." The same principle has been laid down by the Calcutta High Court in Set Umedmal and another v. Srinath Ray and another (I.L.R. 27 Cal. 810.) where certain immovable properties were sold in execution of an exparte decree and were purchased by the decree-holder himself. After the confirmation of the sale, the decree was set aside under S. 108 of the Civil Procedure Code, 1882 at the instan .....

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he decree-holder himself was the purchaser. At page 813 Maclean, C.J. stated : "As regards the second point, viz., whether, notwithstanding the confirmation, the sale ought to be set aside, the fact that the decree-holder is himself the auction purchaser is an element of considerable importance. The distinction between the case of the decree-holder and of a third party being the auction purchaser is pointed out by their Lordships of the Judicial Committee in the case of Nawab Zainal-abdin K .....

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182) where it was held that if an ex-parte decree has been set aside, it cannot by any subsequent proceeding be revived and if a decree is passed against judgment-debtors on re-hearing, it is a new decree and does not revive the former decree. The same opinion has been expressed in Abdul Rahaman v. Sarafat Ali(20 Calcutta Weekly Notes, 667.) in which it was pointed out that as soon as an ex-parte decree was set aside, the sale, where the decree-holder was the purchaser, falls through and was no .....

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e the sale of the house set aside. It was held, in these circumstances, by the Bombay High Court that the previous sale of the house in execution under the previous decree which had been set aside should itself be set aside as being no longer based on any solid foundation; but subject in all the circumstances to the condition that the defendant should pay up the amount due under the second decree within a specified time. On behalf of the respondents reference was made to the decision of this Cou .....

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Court which restored the decree of the trial Judge who decreed a sum of ₹ 3,88,300. It was held by this Court that the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree, and, the sale was not in consequence of any error in a decree which was reversed on appeal by the Privy Co .....

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