The legal fiction of relating back under Section 65 Code of Civil Procedure is effective only when there is no intervening situation to prevent its application. The auction purchaser can derive valid title only if there is no intervening circumstance divesting the title of the judgment debtor.

K. Sreedhar Rao, J.—The appeal filed against the judgment and decree passed by the XIX Additional City Civil Judge, Bangalore in Original Suit No. 1015 of 1983. The suit came to be dismissed. The appellant is the Plaintiff in the suit filed for partition and separate possession of 1/6th share in the suit property and also for mesne profits. The facts involved in the suit project the riddled situation in law. According to Plaintiff, 1/6th share in the suit property was purchased by her in a Court auction held in Execution Case No. 1036 of 1968 arising out of O.S. No. 505 of 1964. The entire suit property claims to have been purchased by the first Defendant in Execution Case No. 186 of 1969 arising out of O.S. No. 225 of 1964.

2. The suit O.S. No. 505 of 1964 was filed by the 4th Defendant against his creditors for recovery of money.

3. Against one A.P. Padmanabhaiah one of the members of the family a decree is obtained in O.S. No. 225 of 1964, a suit was filed by the 4th Defendant for recovery of money of Rs. 3,000/- in O.S. No. 505 of 1964. The said suit came to be decreed. The 4th Defendant having obtained the decrees one against Padmanabhaiah one of the members of the family in O.S. No. 505 of 1964 and a decree against all the members of the family in O.S. No. 225 of 1964 for realisation of the amounts filed two separate cases executed in Ex. Case Nos. 186 of 1969 and 1036 of 1968. In Execution Case No. 186 of 1969 the earliest sale of the suit property was taken out. However in the sale proclamation, the attachment obtained against the property by the Plaintiff-appellant in Execution Case No. 1036 of 1968 was indicated. The auction sale was held on 25.8.1972. The first Defendant is the auction purchaser.

4. Before the confirmation of the sale in Execution Case No. 186 of 1969 to an extent of 1/6th share in the suit property Court sale was held for realisation of the decreed liability in Execution Case No. 1038 of 1968. The auction sale was held on 30.7.1972. The Plaintiff-appellant is the auction purchaser of the one-sixth share. The confirmation of sale was made in Execution Case No. 1036 of 1968 in favour of the Plaintiff-appellant on 5.12.1972. Subsequently, the sale in favour of the first Defendant was confirmed in Execution Case on 23.2.1973.

5. Based on the purchase of one-sixth share in the suit property in an auction sale, the Plaintiff-appellant filed the present suit for partition and separate possession of his share in the suit property.

6. The first Defendant has stoutly contested the suit. The second Defendant claims to be the purchaser of the suit property under an agreement of sale from the first Defendant and claims to be in possession of the suit property. The third Defendant is the daughter of erstwhile owner and sister of the judgment debtor in the earlier two suits filed by the 4th Defendant and she claims to be in possession of the entire property as against the claim of the second Defendant. The above narrated facts are all admitted. The trial Court dismissed the suit of the Plaintiff holding that he did not acquire any title in the one-sixth share of the property purchased. Being aggrieved, the present appeal is filed.

7. Heard the Counsel for the appellant and Respondents. Precisely a question would arise in this appeal regarding right and title of the appellant in the one-sixth share of the suit property shown to have been purchased by him in the auction sale. In support of the appellant's cases, the decision of the Patna High Court in Gopal Bux Rai v. Babushyambehari Singh AIR 1940 p. 565 is cited wherein it is held thus:

The words of Section 65 Code Civil Procedure, make it clear that the property does not actually vest in the purchaser at the time of the sale; but once the sale is confirmed, it is deemed to have vested in him as and from that date. Confirmation of a sale is an integral part of the transaction of sale and without confirmation the purchaser acquires no title. Consequently an order