A purchaser from a decree-holder purchaser is entitled to the same protection as a stranger purchaser at an execution sale and is not liable to restitution of the property to the judgment-debtor.

RAMAMURTI, J. :- This Letters Patent Appeal arises out of restitution proceedings in O. S. No. 37 of 1951, Sub-Court, Madurai. The first respondent herein is the judgment-debtor. The second respondent is the decree-holder-purchaser and the appellant is a purchaser from the decree-holder-purchaser.

2. The second respondent filed the suit, O. S. No. 37 of 1951, to recover a sum of nearly Rs. 9050 as due to him in respect of two loans, Rs. 6000 and Rs. 2000 respectively and obtained a decree for that sum together with subsequent interest on 18-11-1952. The first respondent herein, the debtor, filed an appeal to this Court in A. S. No. 174 of 1953 (Mad) and during the pendency of the appeal, it appears, the debtor paid several sums on various dates in all amounting to Rs. 3500, but he did not completely comply with the conditions subject to which stay of execution was ordered by the High Court. The decree-holder therefore pursued his execution petition and purchased the properties himself at the auction sale on 21-6-1954, for sum of Rs. 6015. The judgment-debtor filed an application under O. XXI, R. 90, C.P.C., to set aside the sale but it was dismissed and the sale was confirmed on 3-8-1954. The decree-holder-purchaser took delivery of the properties on 30-8-1954.

3. On 26-7-1956, the appellant entered into an agreement to purchase those properties from the decree-holder-purchaser. In the meanwhile, on 4-12-1956, the judgment-debtors appeal, A. S. No. 174 of 1953 (Mad) was allowed; as a result of which the judgment-debtor succeeded to a substantial extent in this Court. But even before the judgment by the High Court, on 17-11-1950, the decree-holder executed a sale deed in favour of the appellant herein. It appears that there was some dispute about registration, and the sale deed was registered compulsorily after the judgment of the High Court.

4. The judgment-debtor filed E. A. No. 266 of 1957, out of which the present appeal arises, for restitution by way of re-delivery to him of the property sold in Court auction. The learned Subordinate Judge dismissed his application, holding that the appellant herein is a bona fide purchaser from the decree-holder-purchaser, and therefore, an order for restitution could not be passed as against the property in his hands. This order was confirmed on appeal by the learned District Judge. The judgment-debtor, the first respondent herein, preferred C. M. S. A. No. 147 of 1960 and Ramachandra Iyer, C.J., allowed the appeal and ordered restitution and redelivery of the property. The appellant (the purchaser from the decree-holder-purchaser) has filed the present Letters Patent Appeal.

5. After an anxious and careful consideration of all the aspects of the matter adverted to in the judgment of the learned Judge we have come to the conclusion that this appeal has to be allowed. We are free to confess that the question which arises for decision is by no means free from difficulty, but, with due respect, we are of the opinion that the view taken by the learned Judge is not in line with some of the Bench decisions of this Court with which we find ourselves in respectful agreement.

6. Before the learned Judge some argument appears to have been advanced on the question as to what exactly would be the state of account between the judgment-debtor and the decree-holder after the judgment of the High Court. On behalf of the purchaser, it was contended that giving credit for all the part payments made, a sum of Rs. 190 and odd was still due by the judgment-debtors and therefore the execution sale was clearly justified. On the other hand, on behalf of the judgment-debtor, it was contended that he had really over paid a sum of Rs. 231-8-0 and therefore there was no justification for the execution sale. It was also contended that the appellant (that is the purchaser from the decree-holder-purchaser) was bona fide purchaser for value having paid Rs. 6500 and that he had no knowledge of any defect or infirmit