ivil Appeal No 140 of 1990
From the Judgment and Order dated 8289 of the Madras High Court in LPA No 131 of 1987
AK Sen NDB Raju K Rajeshwaran and N Ganapathy for the Appellants
KR Choudhary and V Balachandran for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
Special Leave is granted
This appeal is from a decision of the Madras High Court which denied the appellants claim for setting aside a judi cial sale
The facts giving rise to the appeal as found by the Courts may be summarised as follows
Arumugham respondent 1 obtained money decree on the basis of a promissory note from the Subordinate Judge Salem in OS No 3881968
Sethuramalingam the judgment debtor appealed to the High Court but could not get the decree stayed
He could not furnish security for the decre tal amount which was a condition for stay
The decree was put into execution notwithstanding the pendency of the appeal
In February 1973 his two items of properties i three houses and ii 1093 acres of land were brought to court sale
They were purchased by Kuppa Goundar respondent No 2 for Rs7550 and Rs15050 respectively
In October 1975 the High Court allowed the appeal on merits
The promissory note which was the basis of the suit was disbe lieved and rejected
The trial court judgment was set aside and the plaintiff was non suited
Thereupon the judgment debtor moved the executing court for setting aside the sale
He has alleged inter alia that the sale 81 was vitiated by material irregularities and properties were deliberately sold for under value
The sale was collusive between decree holder and the auction purchaser
The latter was sambandhi of the former and just a name lender
It was also his contention that since the decree has been reversed the sale should be nullified and restitution should be ordered
The Court rejected all the contentions relating to material irregularities for want of satisfactory evidence
The Court also held that subsequent reversal of the decree could not be depended upon since the sale has been confirmed in favour of the auction purchaser who was a stranger to the litigation
The judgment debtor appealed to the High Court and succeeded at first instance before learned single Judge
The learned Judge found in effect that a the sale was vitiated by material irregularities resulting in fetch ing a low price to properties b the decree holder and auction purchaser are close relatives and the sale seems to be collusive and c after the Court sale they seemed to have entered into an agreement for selling the second item of properties for Rs96000
With these conclusions the sale was set aside
But on appeal the Division Bench of the High Court has expressed contrary views on all those points and reversed the decision of learned single Judge the judgment debtor died during the pendency of the appeal before the High Court
His legal representatives have now appealed
Mr AK Sen learned counsel for the appellants raised a number of questions
The important and central issue however relates to the underlying jurisdiction of the Court to set aside the confirmed sale upon subsequent reversal or modification of the decree
The question is whether the auction purchaser s interest should be protected as against the judgment debtor who has since succeeded in getting rid off the decree against him
There are two authorities of this Court bearing on the question i Janak Raj vs Gurdial Singh and Anr  and ii Sardar Govindrao Mahadik and Anr
vs Devi Sahai  Ors
  In Janak Raj case the appellant was a stranger to the suit in which there was an ex parte money decree
In the execution of the decree the immovable property of the judgment debtor was brought to sale in which the appellant became the high est bidder
The judgment debtor filed an application for setting aside the ex parte decree and the court allowed it before confirming the sale
Thereupon the judgment debtor objected to the confirmation of sale on the ground that the auctionpurchaser was in conspiracy and collusion with the decree holder and as such not entitled to have the sale confirmed
The execution court 82 however overruled the objection and confirmed the sale Mitter J agreed with that view and observed at 79 The result is that the purchaser s title relates back to the date of sale and not the confirmation of sale
There is no provision in the Code of Civil Procedure of 1908 either under O XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale
It does not seem ever to have been doubted that once the sale is confirmed the judgmentdebtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed The question is whether the same result ought to follow when the reversal of the decree takes place before the confirma tion of sale
There does not seems to be any valid reason for making a distinction between the two cases
It is certainly hard on the defendant judgment debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld
Once however it is held that he cannot complain after confirmation of sale there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation
The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execu tion of a decree
It also lays down how and in what manner such sales may be set aside
Ordinarily if no application for setting aside a sale is made under any of the provisions of rr 89 to 91 of O XXI or when any application under any of these rules is made and disallowed the court has no choice in the matter of confirming the sale and the sale must be made absolute
If it was the intention of the Legis lature that the sale was not to be made absolute because the decree had ceased to exist we should have expected a provi sion to that effect either in O XXI or in Part II of the Code of Civil Procedure of 1908 which contains sections 36 to 74 inclusive    Finally the learned judge rounded off the judgment thus at 86   
The policy of the Legislature seems to be that 83 unless a stranger auction purchaser is protected against the viccissitudes of the fortunes of the suit sales in execu tion would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified
The Code of Civil Procedure of 1908 makes ample provision for the pro tection of the interest of the judgment debtor who feels that the decree ought not to have been passed against him   In Sardar Govindrao Mahadik DA Desai J while referring to the principle in Janak Raj case said at 224 Ordinarily if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside
This proceeds on the footing that the equity in favour of the stranger should be protected and the situa tion is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execu tion of the decree during the pendency of the appeal
 The learned Judge further said But what happens if the auction purchaser is the decree holder himself In our opinion the situation would materi ally alter and this decree holder auction purchaser should not be entitled to any protection
At any rate when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending
He is aware of the fact that the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside
He cannot force the pace by exe cuting the decree taking advantage of the economic disabili ty of a judgment debtor in a money decree and made the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war
Therefore where the auction purchaser is none other than 84 the decree holder who by pointing out that there is no bidder at the auction for a nominal sum purchases the property to wit in this case for a final decree for Rs500 Motilal purchased the property for Rs300 atrocious situation and yet by a technicality he wants to protect himself
To such an auction purchaser who is not a stranger and who is none other than the decree holder the court should not lend its assistance In Janak Raj case a stranger auction purchaser was protected against vicissitudes of fortunes of the litiga tion
In SG Mahadik case such protection was not afforded to auction purchaser who happens to be the decree holder himself
The reason seems to be that the decree holder is not a stranger to the suit
Indeed he is not since he is eonomine party to the appeal against the decree which he seeks to execute
He is aware of the fact that due to eco nomic hardship the judgment debtor was unable to have the decree stayed
He however does not wait for final outcome of the litigation which he has initiated
He exploits the helpless situation of the judgment debtor and hastens the execution of the decree
The Court therefore should not lend its assistance to him to retain the property purchased if the decree is subsequently reversed There is thus a distinction maintained between the decree holder who purchases the property in execution of his own decree which is afterwards modified or reversed and an auction purchaser who is not party to the decree
Where the purchaser is the decree holder he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser
The latter remains unaf fected and does not lose title to the property by subsequent reversal or modification of the decree The Courts have held that he could retain the property since he is a bona fide purchaser This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed
He is thus distin guished from an eonomine party to the litigation There cannot be any dispute on this proposition and it is indeed based on a fair and proper classification The innocent purchaser whether in voluntary transfer or judicial sale by or in execution of a decree or order would not be penalised
The property bona fide purchased ignorant of the litigation should be protected The judicial sales in particular would not be robbed off all their sanctity
It is a sound rule based on legal and equitable considerations
But it is 85 difficult to appreciate why such protection should be ex tended to a purchaser who knows about the pending litigation relating to the decree
If a person ventures to purchase the property being fully aware of the controversy between the decree holder and judgment debtor it is difficult to regard him as a bona fide purchaser
The true question in each case therefore is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution
If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree The Court by all means should protect his purchase
But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property it would be inappropriate to term him as a bona fide purchaser
In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution
No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for The Patna High Court in Chhota Nagpur Banking Associa tion vs CTM Smith  Anr 1943 Patna 325 expressed a similar view
Fazl Ali CJ as he then was said at 327 that where there is clear and cogent evidence that a strang er purchaser was fully aware of the merits of the controver sy in regard to the property purchased by him and was also aware that the validity of the decree was under challenge there is no room for presumption that he was a bona fide purchaser
Reference may also be made to the decision of the Sind Judicial Commissioner s Court in Jamnomal Gurdinornal vs Gopaldas and Anr AIR 1924 Sind 101 where similar com ment was made The Madras High Court in R Raghavachari vMAPakkiri Mahorned Rowther and Ors AIR 19 has however taken a contrary view
It was held that restitution under Section 144 CPC cannot be demanded as against a bona fide purchaser who was not a party to the decree The High Court also remarked that the reversal of the decree by the appel late Court or the knowledge of the purchaser about the pendency of the appeal makes no material difference to the operation of that rule
This proposition we are however unable to accept
In our opinion the person who purchases the property in court auction with the knowledge of the pending appeal against the decree cannot resist restitution
His knowledge about the pending litigation would make all 86 the difference in the case
He may be a stranger to the suit but he must be held to have taken calculated risk in purchasing the property
Indeed he is evidently a specula tive purchaser and in that respect he is in no better posi tion than the decree holder purchaser
The need to protect him against restitution therefore seems to be unjustified
Similarly the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also protected to retain the property if the decree is subsequently reversed
There is one other aspect which is more important than what we have discussed hitherto
It was emphasized by Lord Cairns in Rodger vs The Comptoir D  Escompte De Paris 1869 71 LR 3 PC 465 at 475  that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression the act of the Court is used it does not mean merely the act of the Primary Court or of any intermediate Court of Appeal but the act of the Court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case
It is the duty of the aggregate of those Tribunals if I may use the expres sion to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court
 This is also the principle underlying Section 144 of the Code of Civil Procedure
It is the duty of all the Courts as observed by the Privy Council as aggregate of those tribu nals to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court
The above passage was quoted in the majority judgment of this Court in AR Antulay vs
RS Nayak and Ors
  at 672
Mukherjee J as he then was after referring to the said observation of Lord Cairns said at 672 No man should suffer because of the mistake of the Court
No man should suffer a wrong by technical procedure of irregularities
Rules or procedures are the handmaids of justice and not the mistress of the justice
Ex debito justitiae we must do justice to him
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied
 87 It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties he laws of procedure should be so construed as to render justice wherever reasonably possi ble
It is in our opinion not unreasonable to demand resti tution from a person who has purchased the property in court auction being aware of the pending appeal against the de cree
We have carefully considered the evidence in the case
The judgment debtor who has been examined in the case has stated that the auction purchaser is a sambandhi of the decree holder the decree holder s daughter has been given in marriage to the son of auction purchaser
That evidence remains unchallenged
The evidence further indicates that after the purchase both of them have entered into an agree ment with a third party for sale of the second item of properties for Rs96000 and a case seems to be pending on the basis of that agreement
The evidence also discloses that the auction purchaser had no money of his own to pur chase the property
These circumstances are sufficient to hold that the auction purchaser was not a bona fide purchas er
The auction sale in his favour must therefore fall for restitution he Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree
In the result the appeal is allowed the judgment of the Division Bench of the High Court is reversed and that of learned single Judge is restored
The appellants however must pay the costs of this appeal to the auction purchaser which we quantify at Rs5000
RSS Appeal allowed


Summary:
The appellant was a protected lessee or tenant of the agricultural land in dispute under the Bombay Tenancy and Agricultural Lands Vidarbha Region Act 1958
The respond ent became the landlady of the land on June 29 1959 when her father effected a partition of his ancestral lands between himself on the one hand and his wife and his two minor daughters including the respondent on the other
This was the third partition effected by the respondent s father who had earlier also twice partitioned the same lands
Sometime in 1962 the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default
The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal
The Deputy Collector in appeal confirmed this decision and the Maha rashtra Revenue Tribunal rejected the respondent s revision
In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition
On remand the Tehsildar held that the partition effected on June 29 1959 was bogus
Thereafter in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing
Therefore in the appeal against the decision of the Tehsildar the Deputy Collector following the said decision of the Revenue Tribunal held the partition valid and al lowed the respondent s application for eviction
The Revenue Tribunal in revision confirmed this order of the Deputy Collector
67 The appellant preferred a writ petition before the High Court
It was inter alia contended before the High Court that 1 the partition was contrary to the provisions of Hindu Law and 2even assuming that the partition deed of June 29 1959 was a valid document the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 387 of the Bombay Tenancy and Agricultural Lands Vidarbha Region Act 1958
The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement
Allowing the appeal this Court HELD 1 A partition of the property can only be among the parties who have a pre existing right to the property
Under the Hindu Law a female major or minor has no share in the ancestral property
A female is given a share either in the self acquired property of the husband or the father or in the share of the husband or the father in the coparce nary property after the property is partitioned
There cannot therefore be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint in favour of either the wife or the daughter
70C D 2 The position that obtain under section 387 after the Amending Act of 1963 is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition
This amendment is admittedly retrospective in operation
71G H 72A 3 The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1 1961
Hence he became a statutory owner under section 46 of the Act on and from April 1 1961
Any proceedings for evicting him on the ground that he was a tenant and there fore had fallen in arrears of rent could not have there fore been adopted in 1962
72C D