The provisions of Order 21, Rule 63, Civil Procedure Code, barring a subsequent application under Section 151, Civil Procedure Code, are not applicable where the executing court had no jurisdiction to entertain the initial application under Order 21, Rule 58, Civil Procedure Code, due to the sale having already taken place.

1. In this case the petitioners have obtained a money decree against the opposite parties NOS. 2 to 4 in Money Suit No. 38 of 1950 and in execution of that decree the petitioners purchased the disputed holding, namely, holding No. 9/10 of Mahalla Gudri Bazar (Patna City) on the 16th of April, 1953. The case of the petitioners is that they took delivery of possession on the 4th of December, 1957. It is alleged that opposite party no. 1 has also obtained a money decree against Opposite parties Nos. 2 to 4, and in execution of that decree opposite party No. 1 obtained an order of attachment of the holding, and on the 11th of November, 1957, opposite party No. 1 purchased the holding in the execution proceeding. The sale in favour of opposite party No. 1 was confirmed by the executing Court on the 11th of December, 1957. On the 26th of November, 1957, the petitioners made an application to the executing Court praying that the property should be released from attachment under the provisions of Order 21, Rule 58, Civil procedure Code. The Munsif dismissed the application on the ground that it was not maintainable as the sale had already taken place. The order of the Munsif is dated the 7th of December, 1957.

2. On the 24th of March, 1958, the executing Court ordered that there should be a writ of delivery of possession in favour of opposite party No. 1. The Court peon reported, however, that possession could not be delivered as the petitioners resisted the execution of the writ. On the 29th of April 1958, opposite party No. 1 made an application to the, executing Court stating that there should be a fresh writ of delivery of possession, and that the report of the peon that there was obstruction on the part of the petitioners was a collusive report. On the 17th of September, 1958, there was a fresh application on behalf of opposite party No. 1 to the executing Court for grant of a writ of delivery of possession.

Thereafter on the 20th of September, 1958, the petitioners made an application to the executing Court praying that there should be no writ for delivery of possession given to the opposite party No. 1. After hearing the parties concerned, the executing court has ordered that the application of the petitioners should be rejected. The reason given by the executing court for rejecting the application is that the order of the executing Court dated the 7th of December, 1957, rejecting the application of the petitioners under Order 21, Rule 58, Civil Procedure Code, operated as a bar to the present claim because of the provisions of Order 21, Rule 63, Civil Procedure Code.

3. The petitioners have obtained a rule from the High Court against the order of the learned Munsif dated the 29th of January, 1959, rejecting their application under Sec.151 of the Code of Civil procedure.

4. On behalf of the petitioners the submission made by learned Counsel is that the reasoning of the learned Munsif for rejecting the application of the petitioners is erroneous. It was pointed out by learned Counsel that the executing Court rejected the claim of the petitioners under Order 21, Rule 58, Civil Procedure Code, on the ground that it was not maintainable as the sale had taken place. It was, therefore, argued on behalf of the petitioners that the principle laid down by this High Court in Manir V/s. Kameshwar, ILR 31 Pat 256 : (AIR 1952 Pat 275) applies to this case and that the provisions of Order 21, Rule 63, Civil Procedure Code, have no application to this case, and the claim of the petitioners is not barred under Order 21, Rule 63 of the Civil Procedure Code. In our opinion, the argument on behalf of the petitioners is well founded and must be accepted as correct.

In an earlier case in Mt. Puhupdei Kuar V/s. Ram Charitar Barhi, AIR 1924 Pat 76 a Division Bench of this High Court has expressed the view that after the sale is held the attachment of the property is ipso facto determined, and the executing Court has no longer any jurisdiction