Manohar Lall, J.This is an appeal by the judgment-debtor against the appellate order passed by the District Judge of Patna ordering the execution of a decree to proceed. The only question for determination in this appeal is whether in the circumstances narrated below this Bench should follow the decision in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 or should refer the matter to a Full Bench in view of certain observations made in Surendra Kumar Singh v. Srichand Mahta AIR 1936 Pat. 97 .

2. The facts are extremely simple. The respondent obtained against the appellant a decree for money in execution of which she attached certain property as belonging to the appellant. Upon the attachment a claim was preferred by a third party under Order 21, Rule 58, Civil P.C., but it was rejected. On the rejection of that claim the sale of the attached property was held and the decree-holder became the auction purchaser. The sale was duly confirmed and a note was made in the execution register that the decree was fully satisfied. In the meantime within the period of limitation provided by law the claimant instituted a suit under the provisions of Order 21, Rule 63, Civil P.C., making the decree-holder and the judgment-debtor as party defendants. The suit was dismissed by the trial Court but on appeal it was decreed with the result that the title to the property which had been purchased by the decree-holder was declared to be with the claimant. Thereupon the decree-holder applied afresh for execution of the same decree. The judgment-debtor objected to this fresh execution on the ground that so long as the sale stood and the order entering full satisfaction of the decree was not removed from the records of the executing Court, the decree-holder was not entitled to execute the decree afresh. The learned Munsif acceded to this objection but on appeal the learned District Judge overruled it and held that there was no bar to the decree-holder executing the decree in the circumstances. Hence the appeal before this Court.

3. The matter is fully covered by the Division Bench decision of this Court in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 where in circumstances similar to those that exist in the present case it was held that the effect of the decree obtained by the claimant in the suit under Order 21, Rule 63, Civil P.C., was to set aside the sale and no formal order to that effect was required. Mullick J. who delivered the judgment in that case (Buoknill J. concurring) observed:

The decree-holder and the judgment-debtor were both parties to the suit and, therefore, they are bound by the order. The argument that under the present CPC no sale can be set aside, except by a resort to the procedure of Order 21 is, in my opinion, not well founded; nor is it necessary that the execution Court should formally cancel the order of satisfaction which was recorded after the sale of lot No. 1, before the decree-holder can proceed to recover the debt which has been revived in consequence of the decree declaring the sale of lot No. 1 to be invalid.

4. Mr. B.C. De for the appellant argued that in view of the decision of the Full Bench of this Court in 15 Pat 3082 this decision is no longer good law. In the Full Bench case, however, the facts were different. In that case there was no claim made under the provisions of Order 21, Rule 58 nor was the sale set aside as the result of a suit instituted under Order 21, Rule 63. Mr. B.C. De concedes that this distinction undoubtedly exists but he relies upon the observation made by Dhavle J., who delivered the judgment of the Full Bench at page 317:

Much reliance has been placed by the respondents on Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 in support of the contention that as decree-holder he can do so. But that was a case where after the satisfaction of a decree by reason of an execution sale a third person had obtained a declaration of his rights to the property in a suit in which both the decree-holder and the judgment-debtor had been impleaded. Mullick J,, who delivered the judgment of the Court in the case, held that the effect of the decree in favour of the successful claimant was to set aside the sale and that no formal order to that effect was required as both the original decree-holder and his judgment-debtor were bound by the later decree. This view has been criticized in Madras in view of the finality of execution proceedings between decree-holder and judgment-debtor, but it is not now necessary to examine its soundness. For, in the present case, there is no adjudication in the presence of the decree-holder and the judgment-debtor which could be taken to have the effect of setting the sale aside.

5. I do not take this observation to mean that the learned Judge held that the decision in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 was not sound. He expressly refrained from examining the soundness of that decision. He only pointed out that it was criticized in Madras; the Madras decisions will be considered later.

6. Mr. De, however, relied upon the Full Bench decision of the Allahabad High Court reported in Amar Nath Vs. Firm Chotelal Durgaprasad and Another, . The reasoning of that decision undoubtedly supports his contention. But the facts of that case were somewhat different. There the decree-holder purchased a house after it was attached in execution of a decree which was started on 2nd August 1929. On 14th February 1930, Mt. Basanti Bibi made an objection claiming a portion of the house under Order 21, Rule 58, but her objection was dismissed on 17th February. The decree-holder put the house up for sale on 18th February and purchased it for Rs. 570. The sale was duly confirmed on 11th March 1930, under Order 21, Rule 92, Civil P.C., the decree-holder certifying satisfaction of his decree by the sale to the amount of his bid. On 25th July 1931, Mt. Basanti Bibi who had instituted a suit on her claim under the provisions of Order 21, Rule 63, obtained a decree for possession of the northern part of the house, the decree declaring that the judgment-debtor had no interest in that portion.

7. Thereafter the decree-holder on 2nd October 1933, applied for execution for the balance of his decree after giving credit for the amount which according to his calculation represented the price of that portion of the house with regard to which his title under the auction purchase remained unaffected by the decree passed in the suit under Order 21, Rule 63, Civil P.C., in favour of Mt. Basanti Bibi. It will be noticed, therefore, that in that case the sale in favour of the decree-holder dated 18th February 1930 was not set aside. All that was held was that the decree-holder by his sale had purchased only a portion of the house for which he paid the full price. The learned Acting Chief Justice who delivered the judgment himself observes at page 594:

It is to be noted that in the present case there was not a total failure of consideration but only a partial failure.

8. In other words, the sale, meaning the entire sale, was not set aside-- here could be no partial setting aside of the sale. This distinguishes that case from the case Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 and also from the facts of the present case, though the reasoning advanced by the learned Acting Chief Justice is undoubtedly entitled to greatest weight. It is necessary to examine now the two Madras cases which have been relied upon in the course of the argument.

9. In Muthukumaraswami Pillai v. Muthuswami Thevan AIR 1927 Mad. 394 the facts were that the decree-holder attached certain property, brought it to sale and purchased it in auction himself on 6th October 1922 being under the bona fide impression that the property belonged to the judgment-debtor. After the sale was confirmed satisfaction of the decree was recorded on 8th November 1922. The decree-holder, having discovered the mistake on 18th December 1922, applied to the executing Court to have the sale and proceedings of the Court in satisfaction set aside and applied for further execution by attachment and sale of some other property actually belonging to the judgment-debtor. The Court rejected the application as being out of time and held that the decree-holder could not proceed with the execution unless the sale was set aside. In appeal before the High Court, it was contended that inasmuch as the execution sale was ex hypothesi a sale of property which was not the judgment-debtors property, the sale was void and without jurisdiction and therefore it was unnecessary to have it set aside. The learned Judges held that the sale was not void but voidable and that unless the sale was avoided within the period fixed by the statute the decree-holder could not ignore the sale as the principle of caveat emptor applied to the decree-holder auction purchaser equally as to any other auction purchaser.

10. The argument based on Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 that the decree-holder is in a more favourable position than a stranger auction purchaser was not approved. But Mullick J. had not made any such remark in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 . All that he stated was that the effect of the decree which had been obtained by the stranger Firangi Lal in a suit to which both the decree-holder and the judgment-debtor were parties was to set aside the sale and no formal order to that effect was required. it will be noticed that in the Madras case no suit was instituted under the provisions of Order 21, Rule 63, Civil P.C.

11. In Jagannadha Rao v. Basawayya AIR 1927 Mad. 835 the facts were that the decree-holder who had obtained a mortgage decree brought to sale some of the mortgaged items in execution of his decree and himself became the purchaser in court auction. As the price fetched was enough to satisfy the decree he entered satisfaction. The sale was duly confirmed but when the decree-holder auction purchaser went to take possession of the property purchased he was obstructed by a stranger and his objection to remove the obstruction was dismissed. It was in these circumstances that he filed an application to set aside the satisfaction of the decree that he had entered and to bring to sale other items included in his decree. It was held that the remedy of the decree-holder was first to have the sale set aside under Order 21, Rule 91 within the period of limitation provided by Article 166, Limitation Act, and therefore the fresh application was not maintainable. It was also held that the fact that the decree-holder was unable to obtain possession of the properties purchased by him in court auction did not entitle him without having the court sale set aside to execute his decree anew; the learned Judges being also of the opinion that a sale in execution of a decree for properties which did not belong to the judgment-debtor was voidable and not void. The facts of that case are therefore entirely different. The learned Judges in that case, however, did not approve of the general observations made in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 that the effect of a decree obtained by a third party claimant against the decree-holder who had purchased the property of the judgment-debtor was to set aside the sale and that "no formal order to that effect was required.

12. It is unnecessary to consider the broad question whether whenever a sale, which has been held in execution and duly confirmed, is nullified by a decree obtained by a third party in a subsequent suit to which both the decree-holder and the judgment-debtor are parties, the sale must be ipso facto deemed to be set aside so as to entitle the decree-holder to the benefit of the provisions of the CPC relating to execution of decrees.

13. But I am of opinion that where the suit is brought under the provisions of Order 21, Rule 63, Civil P.C., no formal order for setting aside the sale is required and the decree-holder auction purchaser should be allowed to proceed to execute his decree afresh provided there is a total failure of consideration, that is to say, he loses by the suit the entire property purchased by him in auction. The reason is this. When a claimant objects to the attachment of a property at the instance of the decree-holder who seeks to sell it as the property of the judgment-debtor the executing Court is bound to investigate into that claim under the provisions of Order 21, Rule 58. In investigating that claim the Court has been given powers "as regards the examination of the claimant or objector, and in all other respects as if he was a party to the suit" provided of course that the Court need not make such investigation if it considers the claim or objection to be designedly or unnecessarily delayed. It is expressly indicated in Rule 63 that.

where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which ha claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

14. Now if the sale is held after a decision adverse to the claimant the sale is founded upon the order of the executing Court which holds that the attached property belongs to the judgment, debtor and if that order is reversed by a suit which is expressly provided by the Code (it is to be noticed within a shorter period of limitation than would otherwise be the case) and if the decree-holder and judgment-debtor are parties to that suit the effect of the decision in that suit is to remove the attachment and, therefore, to set aside the sale founded on the attachment. The decree-holder in such cases is entitled to ask for such relief from the executing Court as will place the parties in the same position which they would have occupied but for the erroneous order rejecting the claim. And it is the duty of the Court in exercise of its inherent powers to grant such relief, bearing in mind that there can be no partial setting aside of a sale. In such circumstances to hold that the absence of a formal order of the executing Court setting aside the sale amounts to the sale being still good is to sacrifice the substance to the form.

15. In the well known case in Pul Cumari Debi v. Gansyam Misra (08) 35 Cal. 202 Lord Robertson in delivering the judgment of the Board pointed out that the suit instituted u/s 283 of the old Civil P.C., which corresponds to Order 21, Rule 63 of the present Code, is merely a mode of obtaining a review of the order passed under Order 21, Rule 60 or Rule 61 (Sections 280 and 281 of the old Code). Having held that Article 17, Schedule 2, Court-fees Act, applied to that case the learned law Lord observes at p. 25:

This view is opposed, not only to that of the respondents and of the High Court, but to that of the appellant. Misled by the form of the action directed by Section 283, both parties have treated the action as if it wore not simply a form of appeal but as if it were unrelated to any decree forming the cause of action... On the other hand, the respondents equally ignore the essential fact that this is a plaint for review of a summary decision.

16. If once the true nature of the suit which has to be instituted under the provisions of Order 21, Rule 63, Civil P.C., is kept in view there is no difficulty in holding that the observations made by this Court in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 are sound and apply fully to the facts of this appeal. Another Division Bench of this Court also accepted the correctness of that view in Firm Ganga Ram Gulrj Ram v. Muktiram Marwari AIR 1931 Pat. 405 . The unreported decision of a Division Bench of this Court in Misc. Appeal No. 283 of 1934 which is referred to in the Pull Bench case in Surendra Kumar Singh v. Srichand Mahta AIR 1936 Pat. 97 does not conflict with that view. The facts of that unreporfted case were similar to those of the Madras case, Muthukumaraswami Pillai v. Muthuswami Thevan AIR 1927 Mad. 394 which was approved by this Court in that unreported case. By way of analogy, it may be mentioned that recently a number of decisions have been given by Division Benches of this Court where sales held in execution of decrees were in effect set aside (even though the sales had been confirmed long ago), consequent upon the setting aside by this Court of the orders which the Courts below had passed in violation of the provisions of the Money-lenders Act relating to valuation of properties or to the granting of instalments: see the case in Bishun Singh v. Palakdhari Singh AIR 1939 Pat. 592 The reason for the rule is that where the order which is passed in execution proceedings is itself subject to review or appeal and that order is subsequently set aside, the foundation upon which the sale stands in favour of decree-holder auction purchaser disappears and the sale ipso facto stands vacated and no formal order is required by the executing Court to set aside the sale.

17. For these reasons I am of opinion that this Bench should apply the decision in Radha Kishun Lal v. Kashi Lal AIR 1924 Pat. 273 to the facts of the present case and that it is unnecessary that the matter should be referred to a Pull Bench for consideration. The appeal therefore fails and is dismissed. There is no appearance on behalf of the respondent.

Chatterji J.

I agree.