Syed Qayam Ali vs Administrator Dorgah and others

Nigam, J.C.

The Durgah Committee, Ajmer, obtained decree No. 810 of 1944 against Fazal Hussain and three others and on 28-12-1945 an application (No. 32 of 1946) was presented in execution of the decree. Execution was sought by attachment and sale of the immovable property let ailed in a schedule annexed to the application in auction-sale was held on 8-7-1950 and, an application under O. 21, R. 90 to set aside the sale was filed on 1-8-1950 by Syed Fazal Hussain.

While this application was under consider on, Fazal Hussain filed another application on 5-4-1951 urging that in view of the provisions (sic) S. 5, Durgah Khawaja Saheb (Emergency (sic) Act, 1950 the proceedings had abated (sic) the Court had no jurisdiction to proceed in the matter. The learned 2nd Additional Sub-Judge, who was seised of the case, by his order dated 9-8-1951 accepted the application and held that the proceedings had abated and the matter could be decided by the Chief Commissioner. Against that order, Qayam Ali, the auction-purchaser has come up in revision. I have heard the learned counsel for the applicant and the learned-counsel for opposite-parties Nos. 1, 2 and 4. Opposite-parties 3 and 5 are not present despite-service and the revision has been heard ex parte against them.

The first question for my consideration in this revision application is whether the order passed by the learned 2nd Additional Sub-Judge was meant to govern only the proceedings under O. 21, R. 90, Civil P.C. or the whole execution proceedings. I am of opinion that the order was intended to govern the whole execution proceedings. At the commencement of his order the learned 2nd Additional Sub-Judge has referred to the application under S. 5 of Act 17 of 1950. The reference obviously is to the application on behalf of Fazal Hussain (sic) on 26-4-1951.

In this application the prayer was that the proceedings had abated and the Court had no jurisdiction to proceed further in the matter. It was this application which the learned 2nd Additional Sub-Judge held should be granted. It is the common case of the learned counsel that no-proceedings in execution of the decree have been taken since this order. It, therefore, appears to me that the learned 2nd Additional Sub-Judge in fact held that he had no jurisdiction to proceed further with the execution of the decree and that the matter was within the jurisdiction of the Chief Commissioner in accordance with the provisions of S. 5 of Act 17 of 1950.

The second question for my consideration is whether an appeal lay to the District Judge or whether revision to this Court is competent. The learned counsel for opposite-party No. 2 has objected that the revision is incompetent. The learned counsel for the applicant agrees that the decree-holder was certainly entitled to file an appeal to the District Judge. The learned counsel''s contention, however, is that as he is not a party to a decree he is not entitled to file an appeal and as such the only remedy open to him is by way of revision.

The learned counsel emphasizes the words between the parties to the suit in which the decree was passed or their representatives'' occurring in S. 47, Civil P.C. The question thus narrows down to the consideration whether in the particular facts of the case the auction-purchaser can be regarded to be the representative of either party. So far as the auction-purchaser is concerned he was contesting the judgment-debtor''s application for setting aside the sale under O. 21, R. 90. Thus in the particular circumstances of the case, he must be deemed to be the representative of the decree-holder. I am accordingly of opinion that he is a representative of a party to-the suit in which the decree was passed.

The next point urged by the learned counsel for the applicant is that the proceedings do not relate to the execution, discharge or satisfaction of the decree. I am of opinion that this obviously has no force. The matter arose only in connection with the execution of the decree obtained by the Durgah Committee against Fazal Hussain and others. The sale has not as yet been confirmed and the decree-holder is as yet not entitled to receive the sale proceeds. The question whether one can receive this amount in satisfaction of his decree or not or whether another sale is to be held in execution of the decree Is still under consideration.

In that view, I am of opinion that an appeal lay to the District Judge. This revision, accordingly, is incompetent. The revision application is dismissed. I make no order as to costs.