BINAYAK SWAIN versus RAMESH CHANDRA PANIGRAHI AND ANOTHER

BINAYAK SWAIN versus RAMESH CHANDRA PANIGRAHI AND ANOTHER

Appellant is entitled to restitution under Section 144 of the Code of Civil Procedure because the application for restitution was made when the previous ex parte decree had been set aside and before the passing of a fresh decree. The execution sale at the instance of the decree-holder under the erroneous decree cannot be validated by the subsequent decree, and the decree-holder must restore the property to the judgment-debtor, subject to the latter depositing the amount of the new decree.

Parties
Appellant: Binayak Swain; Respondent: Ramesh Chandra Panigrahi; Respondent: B. Parthasarathy; Respondent: J. B. Dadachanji; Respondent: O. C. Mathur; Respondent: Ravinder Narain
Jurisdiction
India
Judgment Date
10 December 1965
Procedural Posture
Civil Appeal / Supreme Court Appeal by Special Leave
Outcome
Appeal allowed in part
Legal Topics
Restitution, Execution of Decree, Auction Sale, Rights of Judgment Debtor, Code of Civil Procedure Section 144
Civil Procedure Restitution Execution of Decree Auction Sale Rights of Judgment Debtor Code of Civil Procedure Section 144

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Parties

Binayak Swain

Appellant

Ramesh Chandra Panigrahi

Respondent

B. Parthasarathy

Respondent

J. B. Dadachanji

Respondent

O. C. Mathur

Respondent

Ravinder Narain

Respondent

Procedural Posture

Civil Appeal / Supreme Court Appeal by Special Leave

Legal Issues

  1. 1 Whether a judgment-debtor is entitled to restitution of property sold in execution after the original decree is set aside and a fresh decree is passed.
  2. 2 Whether the subsequent decree validates an earlier execution sale under a decree that was set aside.

Ratio Decidendi

Appellant is entitled to restitution under Section 144 of the Code of Civil Procedure because the application for restitution was made when the previous ex parte decree had been set aside and before the passing of a fresh decree. The execution sale at the instance of the decree-holder under the erroneous decree cannot be validated by the subsequent decree, and the decree-holder must restore the property to the judgment-debtor, subject to the latter depositing the amount of the new decree.

Court Disposition

Appeal allowed in part

Orders

  • Appellant to be restored to possession of properties sold in execution subject to deposit of Rs. 970 within two months.
  • If deposit is made, sale set aside and respondents to deliver possession to appellant.