The execution petition is not maintainable if the decree-holder does not take steps to set aside the court sale within the prescribed time under 0.21, R.91, C. P. C.

1. The decree holder is the appellant and the appeal is filed against the order of the appellate court dismissing the execution petition 733 of 1960 filed by the decree-holder on 9-12-1960.

2. In execution of the decree, the right of the second defendant in 20 cents of land was sold in court auction on 14-12-1956 in full satisfaction of the decree debt. The sale was confirmed on 6-7-1957. When the decree-holder auction-purchaser applied for delivery of property, he was obstructed from taking delivery of the property by a stranger to the decree. The application filed by the auction-purchaser for delivery of property after removing the obstruction was dismissed.

3. Execution Petition 733 of 1960 was filed by the decree-holder on 9-12-1960 on the ground that the court sale became infructuous because of the dismissal of the application filed by him for delivery of property after removing the obstruction. The execution court allowed the decree-holder to take further steps on the execution petition on the ground that the decree revived since he did not get possession of the property purchased in court auction. The appellate judge dismissed the execution petition as he was of the view that the decree did not revive as the decree-holder did not get the court sale which took place in satisfaction of the decree amount, set aside.

4. It was contended by the advocate for the decree-holder that since the decree holder was not able to get delivery of property in execution of the decree, the court sale became infructuous and therefore the decree revived to be executed and in support of his contention he relied on the decision in Madhavan Namboori v. Narayanan Namboori 24 TLJ. 1166. The decision no doubt supports the proposition contended for by the learned advocate for the appellant. But this decision was dissented from in Padmanabha Pillai v. Lekshmanan Pillai 31 TLJ.1 where their Lordships of the Travancore High Court following an earlier decision of the same court in Kuruvila Thomman v. Pierce Leslie Co, Ltd., 26 T. L. J. 927 observed at page 4:

"An execution sale is neither void nor an absolute nullity as between the decree-holder and the judgment-debtor, merely because the judgment-debtor had no saleable interest in the property sold. The court has authority and jurisdiction to attach and sell in execution any property which the decree-holder puts forward as the property of his judgment-debtor. The jurisdiction of the executing court to sell is complete, notwithstanding the fact that the property does not really belong to the judgment-debtor. The reason for this is that a court in selling property in execution does not give a guarantee that the property sold is the property of the judgment-debtor. It has been held both here and elsewhere that a court sale carries no guarantee that, the property sold belongs to the judgment-debtor and that the auction-purchaser takes the risk and bears the loss if it turns out later that the property does not belong to the judgment-debtor. The principle of caveat emptor applies in such cases."

The Travancore-Cochin High Court in Varghese v. Varghese ILR.1954 T. C. 1258 followed the decision in Padmanabha Pillai v. Lakshmanan Pillai 31 T. L. J.1 and held that "when once a sale has taken place the decree-holder auction-purchaser is not entitled to execute the decree again on the ground that the judgment-debtor had no saleable interest in the property sold unless he gets the sale set aside in the manner prescribed by the Code of Civil Procedure." 0.21, R.91, C. P. C. is to the following effect:

"The purchaser at any such sale in execution of a decree may apply to the court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold."

The general principle is that a court sale carries with it no guarantee that the property sold is the property of the judgment-debtor. The auction-purchaser takes the risk and bears the loss if it is found that the property s