JUDGMENT :

Pankaj Jain, J. (Oral)

1. Defendant is in second appeal.

2. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as defendant No.1 and respondent No.1 as the plaintiff.

3. Plaintiff filed suit seeking declaration to the effect that he is owner in possession of the suit land measuring 12 Kanals 10 Marlas being 1/4th share of the land measuring 50 Kanals fully detailed in the head-note of the plaint. He further sought decree of joint possession.

4. Pleaded case of the plaintiff is that he was co-sharer in the land admeasuring 50 Kanals to the extent of 1/2 share. The total land of 50 Kanal was under mortgage with one Mulla Singh. On 9th of March, 1965, Mulla Singh instituted suit seeking possession of the mortgaged land or in the alternate for recovery of mortgaged money of Rs.3,000/- by sale of the mortgaged property. The plaintiff was also arraigned as one of the defendant in the said suit. Suit was decreed by Sub Judge 1st Class, Muktsar on 26th of November, 1965. Preliminary decree was passed for recovery of Rs.3,000/-by sale of the land. Plaintiff and Tehal Singh were granted three months' time to deposit the amount. Failing which, the plaintiff was held entitled to apply for the final decree. The plaintiff as well as other Judgment Debtor i.e. defendant No.2 in the present suit namely Tehal Singh, failed to deposit the amount in terms of the decree. Mulla Singh applied for final decree. On 26th of August, 1968 final decree was passed by Sub Judge 1st Class, Muktsar ordering recovery of Rs.3,000/- by sale of 92 Kanals and 12 Marlas of the land. In execution of the said decree, defendant No.1 purchased the land measuring 25 Kanals i.e. 1/2 share of total land measuring 50 Kanals in open auction for a sum of Rs.3,550/-. The plaintiff claimed that during the pendency of the said civil suit, defendant No.2 sold the land to defendant No.1 though registered sale deed dated 1st of June, 1968 for a sum of Rs.15,000/- which was the total share of defendant No.2. Sale certificate was issued by Sub Judge, Muktsar in execution w.r.t. 25 Kanals of land describing the same as the land of the plaintiff as well as defendant No.1 despite the fact that it was only 1/2 share out of the 1/2 share of the plaintiff which was sold in auction and as per the sale certificate.

5. Defendant No.2 Tehal Singh, who was judgment debtor to the earlier suit along with the plaintiff admitted the claim of the plaintiff in toto. Suit was contested by defendant No.1. Defendant denied the claim of the plaintiff. It was denied that the decree was passed ex parte. It was pleaded that the plaintiff contested the final decree. After the evidence of Decree-Holder, plaintiff deliberately withdrew from the proceedings and the final decree was passed on 26th of August, 1968. Objection was raised w.r.t. maintainability of the suit.

6. On the basis of the pleadings of the parties, Trial Court framed the following issues:

'1. Whether the suit is not maintainable ? OPD.

2. Relief.'

7. While answering issue No.1, Trial Court held that in terms of provisions of Order 21 Rule 92 (3) CPC, the plaintiff being one of the JDs cannot be allowed to contest the sale effected during the execution of the decree and dismissed the suit.

8. In appeal preferred by the plaintiff, lower Appellate Court reversed the findings of the Trial Court holding that the sale certificate was issued assuming the land to be the ownership of both the brothers namely Gopal Singh and Tehal Singh. Whereas, on the day of auction, Tehal Singh had no share left in the land. 25 Kanals was ownership of Gopal Singh alone. Lower Appellate Court held that in the land measuring 25 Kanals left after Tehal Singh sold his share, only one half should have been chunked out of the ownership of Gopal Singh and thus Gopal Singh should have been effected only to the extent of 1/4th share in the land measuring 50 Kanals. Appellate Court held that in proclamation of