JUDGMENT :- This is an Execution First Appeal arising out of the following facts :

Sabu Deoki Nandan, judgement-debtor objector, was the owner of a certain premises situated in the city of Bijnor. This house was sold on 5-3-1955 in execution of a decree in Suit No. 41 of 1952 and was purchased by Narendra Kumar, respondent There were other incumbrances on this property. The purchase was made subject to the prior incumbrances.

2. Sahu Deoki Nandan had, mortgaged this house with the District Co-operative Bank Limited, Bijnor, for a certain amount. The Bank filed Suit No. 4 of 1955 for recovery of the amount due under the mortgage. The mortgage money had not been paid by Narendra Kumar with the result that the house was sold in execution of this decree on 3-12-1968 for Rs. 68,000/- The Bank withdrew the amount due to it out of this money and Rs. 37,000/-, the balance, remained in court custody.

3. Meanwhile, five other creditors of Sahu Deoki Nandan filed an application for ratable distribution. We are not concerned with that application in this appeal.

4. The sons of Sahu Deoki Nandan filed a suit. No. 7 of 1955, with the allegation that the property was joint family property and was not liable to be sold in execution of any decree which had been obtained against Sabu Deoki Nandan in his personal capacity. The mortgage suit by the District Co-operative Bank had been filed before the house was purchased by Narendra Kumar In the auction. Therefore, an application was made by the Bank for impleading Narendra Kumar as a defendant in Suit No. 4 of 1955. This application was resisted by Narendra Kumar on the ground that the sale in his favour had not been confirmed and the sale had taken place during the pendency of the suit, and, therefore, he should not be made a party in the suit This objection of Narendra Kumar prevailed and the application of the Bank for impleading Narendra Kumar as a party was rejected.

5. In the suit, a son of Sahu Deoki Nandan had filed an application for staying the confirmation of the sale in favour of Narendra Kumar. The stay order was passed on 17-6-1955. On 19-10-1955 the stay order was modified and Narendra Kumai, who was a party in Suit No. 4 of 1955, was restrained from taking possession of the house during the pendency of the suit The sale was thus confirmed in favour of Narendra Kumar on 7-11-1955.

6. Sahu Deoki Nandan made an application in the execution court that he was entitled to the amount of Rs. 37,000/-, which was in the custody of the court, while Narendra Kumar made an application that by the auction sale he bad become the owner of the property and, as such, he was entitled to the amount of Rs. 37,000/-. which was lying in the custody of the Court. The application of Sahu Deoki Nandan did not find favour with the executing court and it was dismissed. It was ordered that Narendra Kumar was entitled to receive that money. It is against this order that Sahu Deoki Nandan has filed this Execution First Appeal.

7. The first contention of the learned Counsel for the appellant was that in Suit No. 4 of 1955, which the Bank had filed against appellant on the basis of the mortgage, Narendra Kumar had given a statement that he had no concern with the property in dispute and, as such, he should not be made a party to the suit. The objection which Narendra Kumar made to the application of the Bank for impleading him as a party has been read over to me. Narendra Kumar did not say that he had no concern with the property. All that he stated was that the sale in his favour had not been confirmed, and that the sale had taken place during the pendency of the suit and, therefore, he was not a necessary party to the mortgage decree and, as such, he should not be impleaded. This objection of Narendra Kumar found favour with the trial court and the application of the Bank to implead Narendra Kumar as defendant was rejected. From a perusal of the objection of Narendra Kumar, I find it as a fact that the above