A decree established in a suit under Order XXI does not automatically nullify an execution sale where necessary parties are not included, reaffirming the principles of execution law.

1. This second appeal purporting to be under S.47 of the Civil Procedure Code is by Ramesh Kumar who had filed an objection under R.58 of Order XXI . Civil Procedure Code questioning the attachment of a house in execution of a simple money decree in favour of Narendra Deo against Jai Jai Ram.

2. The objection under R.58 of Order XXI was that the objector and not the judgment - debtor was the owner of the house attached. This objection was preferred on 21-9-1968. The executing court, however, did not stay the execution sale which had been already advertised to be held on 23-9-1968. The sale was held on the day fixed, that is on 23-9-1968. and the highest bid was that of Budhram Sharma which was accepted by the court on 25-9-1968. The objection of Ramesh Kumar under R.58 of Order XXI was disallowed by the executing court on 14-4-1970. Before the sale could be confirmed by the court Ramesh Kumar filed a suit under O. XXI. R. 63 for declaration of his title in the house sold. To this suit only the judgment - debtor and the decree - holder were impleaded as defendants. The auction purchaser Budhram Sharma was not made a party. On opposition of Ramesh Kumar the attempt by Budhram Sharma, the auction purchaser, to be impleaded as defendant failed. There was a compromise between the parties and the suit was decided in terms of the compromise on 20-10-1970 by which the title of Ramesh Kumar to the house sold in execution of the decree was recognised.
It appears while the said suit was pending the judgment debtor paid the decretal amount to the decree - holder and that payment was duly certified by the executing court by an order dated 8-8-1970 but as the sale had not been confirmed by the court by that time, it was further ordered that the certification would not prejudice the rights of the auction purchaser, if any, acquired under law. Thereafter by an order dated 21-12-1970 the executing court struck off the execution in full satisfaction and set aside the sale dated 23-9-1968. Budhram Sharma, the auction purchaser, filed an appeal against the said order which was allowed and the sale in his favour was confirmed by the lower appellate court by its order dated 27-4-1971. It is against this order that Ramesh Kumar the objector claimant has come up in appeal.

3. The main question which falls for determination in this appeal is whether the decree passed in favour of the appellant Ramesh Kumar in the suit filed under R.63 of Order XXI will result in an automatic cancellation of the sale in execution of the decree and for that reason the sale in favour of Budhram Sharma, the auction purchaser, was liable to be set aside. The two courts below have differed on this question. The executing court held that the objector Ramesh Kumar having established his title to the house attached in execution in the suit under R.63 of Order XXI the sale held in execution automatically failed and was liable to be set aside. The lower appellate Court held that there being no objection under R.89-91 of Order XXI to set aside the execution sale, no choice was left with the court but to confirm the sale inasmuch as Budhram Sharma. the auction purchaser, not being a party to the suit under Order XXI , R.63 the order of the executing court disallowing the objection under R.58 of Order XXI remained conclusive in his favour and the sale was liable to be confirmed.

4. Sri Rajaram Agarwal, learned counsel appearing for the appellant, relying upon the provisions of the relevant rules of Order XXI as amended by our High Court submitted