Munshi Rai vs Rup Narain and Others

Das, J.—A joint decree was obtained by Munshi Rai. the appellant, and Rup Narain Kumar and others, respondents. Certain property belonging to the judgment-debtor was attached; and on the 24th October 1925, Rup Narain Kumar applied for permission to bid through Bau D.N. Sen, pleader. It is quite clear that that application was made on his behalf and not on behalf of all the decree-holders. The Court gave Rup Narain Kumar liberty to bid, and at the sale which followed the property was knocked down to him. The judgment-debtors subsequently paid up the decretal amount together with 5 per cent, as compensation payable to the auction purchasers. Thereupon Rup Naraia Kumar applied for leave to withdraw the compensation money. The application was opposed by Munshi Rai, who contended that he was entitled to a share of the compensation money. On the date when the matter wm taken up for hearing Munshi Rai did not appear, and his pleader informed the Court that his client was not present in Court. Thereupon the learned Subordinate Judge passed as order directing that the compensation money be paid Rup Narain Kumar.

The present appeal is against the order of the learned Subordinate Judge, dated the 12th January 1926, deciding the matter in favour of Rup Narain Kumar.

A preliminary point is taken that the order is not appealable. In my opinion the objection is well founded and must prevail. The question that has now arisen is not between the parties to the suit, but it is a question between the decree-holders. The order is not an order u/s 47, Civil P.C., and therefore no appeal lies. Apart from this question, I think that the order of the learned Subordinate Judge is right on merits. The compensation under Order 21, Rule 39 of the Code is payable to a purchases for the disappointment caused to him by having the sale set a side. It, is not a compensation paid be the decree-holders as such. This being the position the compensation money was clearly payable to Rup Narain Kumar. I mast therefore dismiss this appeal with costs.

Adami, J.

I agree.