The purchaser in execution of a money decree purchases only the right, title and interest of the judgment-debtors existing at the time of the sale.

JUDGMENT :

Mohapatra, J. - The Defendants are the Appellants in this second appeal against the reversing judgment of Sri K.N. Sarkar, Additional Subordinate Judge of Cuttack, dated 15th July 1958, arising out of a suit for declaration of title and for possession. The Plaintiff also prayed for mesne profits, past and future. The Plaintiff obtained a decree for money against the present Defendants who not having paid the decretal amount, execution was started and in execution of the decree for money, according to the Plaintiff's version the suit property was purchased on 17th August 1938 by the Plaintiff. The Plaintiff took possession through Court on 23rd June, 1941.

2. The defence is that the purchase made by the Plaintiff in execution of the money decree was only the right, title and interest of the judgment-debtors and what was sold in execution of the decree did not exist as the Defendants had ceased to have any interest whatsoever in respect of the property put up for sale and purchased by the Plaintiff.

3. The trial Court in the first instance found that on the date of the sale the Defendants bad no interest whatsoever in respect of the property purchased, and as such, he dismissed the Plaintiff's suit which was also confirmed in appeal. The matter went up in Second Appeal No. 45 of 1953 and my learned brother Rao, J. remanded the case on 9th July 1955 for a fresh trial as the evidence was lacking in respect of the writ of attachment. After remand, the trial Court again dismissed the Plaintiff's suit; but the lower appellate Court has reversed the judgment and decree of the trial Court and having allowed a decree in favour of the Plaintiff in respect of the property described in Schedule B of the plaint, the-Defendants have come up in second appeal.

4. To appreciate the point of the controversy two essential features are necessary. It is to be noted, what was put up for sale was, as it appears from the sale certificate itself, the undivided five annas interest of the judgment-debtors who are the present Defendants in respect of Touji No. 3818 in mouza Patwari. As I have already mentioned, the sale took place in the year 1938, the sale certificate being 17th August 198. Prior to the sale, the Touzi was the subject matter of proceedings under the Estates Partition Act and a partition decree was passed by the competent authority in the year 1935. What had been allotted to the share of the Defendants were the specific properties in mouza Patwari appertaining to Touzi No. 9008 the properties which have been described in Schedule B and have been decreed in favour of the Plaintiff by the lower appellate Court. There cannot be any dispute over the position of law that the purchaser in execution of the money decree purchased only the right title and interest of the judgment-debtors existing at the time of the sale. It is very clear from the aforesaid facts that Touzi 3818 had already been partitioned in the year 1935 on the basis of a decree by the competent authority and that specific properties had already been allotted to the Defendant-judgment-debtors. On the date of the sale the judgment-debtors had no undivided interest of five annas in Touzi No. 3818. The properties which were the subject matter of the sale certificate appear to me to be non-existent at the time of the sale and the Defendants had acquired valid title and rights in respect of the property described in Schedule B of the plaint appertaining to Touzi No. 9008. There is no dispute over the position that this Schedule B property was never put to sale and was never purchased by the present Plaintiff-decree-holder. In my view, therefore, the present decree-holder on the basis of the sale cannot be entitled to a decree in respect of the property described in Schedule B of the plaint as it was never attached nor sold.

5. Reliance was placed on behalf of the Respondent-decree-holder upon a decision of their Lordships of the Privy Council reported in 69 I.C. 180. (P.C.) Rai