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TMI Blog1922 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (P.C.), 3. Rajah Thakoor Birrm since deceased, the predecessor-in title of the appellants Nos. 1--5 (hereinafter referred to as the judgment-debtors) was the owner of a full 16-annas chare of a village tailed Patsanda. Ten of the said shares were encumbered and six were unencumbared, save that two bonds had been executed by the Rajah in favour of one Gobardhan Das and others, which purported to create a charge on a 3-annas share in the said Mahal as security for the said Gabirdhan Das for ₹ 23,965 and ₹ 532. 4. Six annas share of the encumbered property was attached for a judgment debt in execution of a decree obtained by the respondents third party, and sold on the 27th July 1904. The respondent, first and second partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther with the said certificate of sale of the 2 Let December 1904 should be set aside, and added this will, of course, have the effect of setting aside all subsequent proceedings on the part of the auction-purchasers based thereon. In consequence of this order setting aside the sale the judgment-debtors applied to the Sub-ordinate Judge claiming restoration to them of the said 6 annas share of the property, together with mesne profits. 8. The auction-purchasers resisted the said claim, and contended (1) that the auction-purchasers could not be asked to restore the property until (a) the amount which they had deposited in Court to complete the sale and (6) the sum paid by them to satisfy the bonds given by the Rajah to Gobardhan Das had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the judgment debtors and, in the event of the sum due to the auction purchasers being in excess of the sum due to the judgment-debtor, he do refuse to restore possession of the properly until the deficit due to the auction-purchasers has been made up either by the decree-holders or by the judgment-debtors themselves. 11. It is to be observed that the Court made no order as to the claim of the auction-purchasers to be paid as a preliminary to restoring possession the sum paid to Gobardhan Das in respect of the two bonds, creating a charge on 3 annas share of the unencumbered property sold to the auction-purchasers. 12. The appellants (the judgment-debtors) have appealed to His Majesty in Council against the said judgment and decree o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. The auction-purchasers have parted with their purchase-money which they paid into Court on the faith of the order of confirmation and certificate of sale already referred to. This money has been distributed amongst creditors of the judgment-debtor who had attached the unencumbered property in question and could have realised their judgment debts by a sale of this property in execution and it would be inequitable and contrary to justice that the judgment debtor should be restored to this property without making good to the auction purchaser the moneys which has been applied for his benefit. 13. It was argued that the remedy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Privy Council and that as his heir or personal representative was not brought upon the record, the order on the advice, of their Lordships in the Privy Council cannot effect the 1/2 anna share in his possession or that of his heir. 17. Their Lordships have no evidence before them of the facts alleged and no claim was presented on behalf of the said Chaturi Ram or his representative and they are of opinion that under the circumstances, the order in this case should be made without prejudice to the rights, if any, of Chatari Ram, or if he is deceased, of his hair or legal personal representative. 18. Their Lordships are of opinion that the order of the High Court, subject to the modification last hereinbefore mentioned, should be affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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