TMI Blog1965 (12) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... side 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 aside the judgment and decree of the Munsif on November 30, 1948. The appellant carried the matter in Second Appeal No. 12 of 1949 to the Orissa High Court which dismissed the appeal on August 27, 1954. After the ex parte decree was passed inappeal No. 178 of 1942 by the District Judge on March 9,1943, the plaintiff executed the decree, attached the propertiesin dispute and himself purchased the properties in Court auction.The plaintiff also took delivery of the properties on May 17, 1946 and since 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. On behalf of the responds Mr. aggarwala made the submission that after the suit was re-heard a decree was passed in favour of the respondents and that decree was eventually affirmed by the High Court., and the appellant was, therefore, not entitled to restitution under the 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, but we are unable to accept the argument of the respondents that the execution sale held under the previous ex parte decree which was set aside by the High Court, is validated by the passing of the subsequent decree and therefore the appellant is not entitled to, any restitution. It is evident that the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgmentdebtor 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 against the latter purchasers, whose position was different from that of the decree-holding purchasers, the suit must be dismissed. At page 172 of the Report, Sir B. Peacock observed as follows It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff decree-holder. The ex- parte decree was subsequently set aside; but at the retrial, a decree was again passed in plaintiffs favour. In the meanwhile, the defendant applied to have 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 Court in Lal Bhagwant Singh v. Rai Sahib Lala Sri Kishen Das. ([1953] S.C.R. 559) But the ratio of that case has no application to the present case. It should be noticed that the decree in that case was affirmed at all stages of the litigation except that the amount of the decree was slightly altered from ₹ 3,38,300 and odd to ₹ 3,76,790 and odd which amount was ultimately decreed by the Privy Council in the appeal which the judgment-debtor preferred from the decision of the Oudh Chief Court which restore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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