AI Structured Summary
Not yet generated for this judgment
Judgment
The respondents put in a petition in the Court of the District Munsif to cancel the delivery of certain shops purchased by the decree-holder in
execution of a decree passed against the respondents as trustees of a temple.
The respondents contended that the shops did not belong to the judgment-debtor temple solely but to five other institutions and further
contended that even the interest of the debtor temple in the corpus of the shop property could not have been and was not legally sold but only its
right to receive a share of the rents and profits.
We must take it that the petition was filed partly u/s 47 of the CPC (which has been held to apply also to disputes between decree-holder-
purchasers and judgment-debtors) and partly under Order XXI, Rule 101. As only one order was passed in respect of both these contentions by
each of the lower Courts and as that order has been based mainly on the contention raised by the respondents as trustees of the judgment-debtor
temple, we hold that an appeal lies against the order of the District Munsif to the District Court and from the order of the District Court to this
Court. We accordingly overrule the preliminary objection raised by the respondents Vakil to the entertainment of this appeal.
As regards the merits, it is clear to us from the records that all the right, title and interest of the judgment-debtor temple in the shops could be
brought to sale under the terms of the decree, and were so brought to sale in execution and were purchased by the decree-holder and not merely
the right to share of the rents and profits.
The lower Courts orders are set aside as based on an untenable preliminary ground.
The petition case will be remanded to the District Munsif for the passing of fresh orders after giving findings on the following points:
(1) To what share in the corpus of the properties sold was the judgment-debtor temple entitled?
(2) If the respondents as trustees of the other institutions are entitled to occupy the shops in virtue of those institutions owning substantial shares in
the shops, whether the appellant is not entitled even to the delivery of the shops under Order XXI, Rule 96, of the Civil Procedure Code?
Costs hitherto will be costs in the cause.