SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine I whether the decision of this Court in Noor Muhammad v. Sarwar Khan and 2 t' others (PLD 1985 Supreme Court 131) did not oust the jurisdiction of the High Court to interfere in Constitutional jurisdiction with an order passed by the District Judge under subsection (2) of section 115 of the Civil Procedure Code.
2. Hussan Din, the appellant, was the owner of one storey building in Khasra No, 426 measuring 1 kanal 9 marlas in the Abadi of Sikandarpur, within the limits of Town Committee Haripur. By a registered deed of mortgage dated 7-1-1961, he mortgaged this property for Rs,5,000 with Haji Ghulam Kibrya and Haji Ghulam Sarwar.The appellant, thereafter, took on rent of Rs,40 per month the same house from the mortgagees as from 17-1-1961. Subsequently, in an ejectment petition, the appellant was ejected from the house for non-payment of rent. The wife of the appellant had also, at one stage, instituted a civil suit claiming the house in dower for herself and it was directed against the mortgagees but it was dismissed on 6-9-1968 and no further proceedings were taken.
On the failure of the appellant to redeem the house, a suit was instituted by the mortgagees seeking a declaration and foreclosure. The service of the appellant in that suit took place by publication of the notice in a newspaper published from Kohat. The suit was decreed ex parte against him and a final decree was passed on 12-5-1970. The execution proceedings were taken out by the mortgagees and the house was put to auction on 23-6-1971. The decree-holders applied to the Court for being permitted to purchase it at the auction which permission was granted and they purchased it for Rs,7,370 and a Court certificate of auction sale was issued to them on 31-7- 1971. The property was thereafter sold by the auction-purchasers on 28-9-1973 for a sum of Rs,30,000 and the purchasers claim to have invested a huge amount over its repairs and improvement.
3. The appellant who had been, it appears, residing at Karachi, addressed a registered letter dated 21-9-1970 from there to the Court of the Civil Judge, requesting as hereunder:-- "I have heard from a reliable source and so far I have not been informed legally neither by the plaintiffs nor by the Honourable Court and I have learnt that the case is adjourned for 2th of instant.
' That if there is any such suit I may kindly be intimated by your honour on my Karachi address which I have written above and in the end of the application of the plaintiffs suit may kindly be dropped as the plaintiffs are knowingly hidding the facts and wanted to encroach upon my rights.
' Therefore, at the end in the interest of justice and bowing down myself before the discretion of your honour I request that my immovable rights in the above property may kindly be safeguarded by the Court and the plaintiffs may be answered as prayed."
' It was dated 21-9-1970 but received by the Civil Judge on 24-9-1970 and no reply was sent to him.
The appellant filed an application on 23-11-1978 for setting aside the ex parte decree obtained by the mortgagees. The Civil Judge after notice to the mortgagees, who also happened to be the auction-purchasers, set aside the ex parte decree by order dated 25-10-1980. Three Revision Petitions were filed against that decision setting aside the ex parte decree. One of the Revision Petitions (Civil Revision No, 24/CR of 1980) was filed by Hafiz Abdus Salam etc., the subsequent vendees from the auction-purchasers. They pleaded want of notice leading to the setting aside of the ex parte decree. The Additional District Judge did not at all refer to their grievance in the matter and rejected all the three Revision Petitions, on 25-1-1982. As any further relief within the framework of section 115 of the Civil Procedure Code was barred, a Constitution Petition was filed by these subsequent vendees of the property. The learned Judges of the High Court, after examining all the facts of the case recorded the following conclusion:-- "In the instant case, in our view not only the decree-holders were necessary party to the proceedings for setting aside the ex parte decree but also the auction-purchasers (in this case, the decree-holders are the auction purchasers) and the transferees from the said auction- purchasers."
' The High Court provided the relief to the respondents in the following words:-- "Thus, without entering deep into the merits of the evidence, we will accept the writ petition on the grounds mentioned above, set aside the impugned orders and in result, direct that the petitioners be impleaded as party to the original application (for setting aside the ex parte decree). They be afforded opportunity to plead their case and prove it by evidence. Other parties to the application would be well advised to produce evidence in support of their respective claims. Let it make clear that we have purposely avoided to give any finding with regard to the objection of limitation, in order to avoid to prejudice the case of any one of the contesting parties and further as it is required to be decided on the basis of the material to be made available in result of the instant order. Parties are directed to appear before the lower Court on 9-1-1985 for further proceedings in the light of our order."
4. Mr. Mansoor Ahmad, Advocate, the learned counsel for the appellant has contended that powers of the High Court and of the District Judge while disposing of matters under section 115 of the Civil Procedure Code are identical. When by subsection (4) of section 115 of the Civil Procedure Code an order of the District Judge has been made immune from further proceedings before the High Court, that express provision of the law cannot be indirectly avoided by invoking the Constitutional jurisdiction. He has thereafter gone to the facts of the case to demonstrate that the entire proceedings had been taken in a manner that the appellant was unable to participate in them and to resist the claim of the respondents. He has particularly drawn our attention to the letter addressd to the Court which had remained unattended. It was timely and before the auction of the house had taken place.
5. Qazi Abdur Rashid, Advocate, the learned counsel for the contesting respondents has contended that once it is found that the respondents had necessarily to be impleaded in the application filed by the appellant, the absence to implead them and an adjudication without impleading them, would be rendered completely without jurisdiction and without, authority. The learned counsel has, in order to elucidate the meaning of 'opposite party' contained in Order IX, Rule 14 of the Civil Procedure Code, referred to the decisions in Suraj Pal Pandey and others v. Uttim Pandey and others (AIR 1922 Patna 281), Dulal Chandra Chowdhury v. Atul Krishna Roy and others (AIR 1935 Calcutta 506) and Anis Imam and another v. Daughter of Jamunabai w/o Banarasi Khatri and others (AIR 1949 Patna 117).
6. Order IX, Rule 14 of the Civil Procedure Code, under which the application had come to be disposed of, provides that "no decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party". In the case of Zainul Abdin Khan v.
Muhammad Asghar Ali Khan and others (1887) 10 I.L.R. 166), the law on the subject was laid down by the Privy Council in the following words:-- "It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order.
' A great distinction has been made between the case of bona fide purchasers who are no parties to a decree at a sale under execution and the decree-holders themselves. In Bacon's Abridgment, Title 'Error,' it is laid down, citing old authorities, that "if a man recovers damages, and hath execution by fieri facias, and upon the fieri facias the sheriff sells to a stranger a term for years, and after the judgment is reversed, the party shall be restored only to the money for which the term was sold, and not to the term itself, because the sheriff had sold it by the command of the writ of fieri facias". There are decisions to a similar effect in the High Court at Calcutta. They are collected in a note in Broughton, in his book on the Code of Civil Procedure, fourth edition, note to S. 246, Act VIII of 1859. So in this case, those bona fide purchasers, who were no parties to the decree which was then valid and in force, had nothing to do further than to look to the decree and to the order of sale."
' The same question was raised in Jatindra Mohan Poddar v. Srinath Roy and others (1899) I.L.R. 26 Cal. 267 at 270, 271 in the following words:- "The parties entitled to notice of an application under section 108 of the Code of Civil Procedure are those that come under the description of `opposite party' in section 109, and they are in our opinion such of the parties to the suit as are interested in opposing the application. An auction-purchaser does not come within this description. It was urged that the auction-purchasers are interested in opposing an application of this nature, as their position may be affected by the ex parte decree being set aside. The answer, however, to this argument is that, as the sale has been confirmed, their rights, whatever they may be, cannot be affected in any way by the present proceedings to which they are not parties and which is instituted with the object of setting aside the ex parte decree, and not of setting aside the sale held in execution of it. The preliminary objection must be overruled."
' In Sevugan Chetty v. Obla Munuswa my Iyer and others (1910) 7 Indian Cases 66), the same law- point was enunciated, as hereunder:-- "We are not prepared to accept the view taken by the District Judge that the 'opposite party' in section 109 of the Civil Procedure Code of 1882 includes a person who has attached the ex parte decree in question. The plain meaning of the section seems to be that only the party on record is entitled to the notice mentioned in that section. It is well-established that an attaching creditor even of a money-decree is not an assignee of the decree nor has he a charge upon it."
' In Dadu Missir and others v. Dhani Mahto (AIR 1934 Patna 396), in an application under Order IX, Rule 14, C.P.C. One of the plaintiffs who was a minor and had obtained an ex parte decree was not impleaded and it was pleaded that his interest was represented by other party who had been served, the Court held that the express provision of Order IX, Rule 14 of notice to the opposite party and the unserved plaintiff being the opposite party, precluded any representation on his behalf by anyone else. In Shyam Lal v. Bahal Rai (AIR 1936 Allahabad 408) a co-defendant had not been served with notice while setting aside the ex parte decree. It was held that as he was not an opposite-party for the purposes of Order IX, Rule 14, C.P.C., such a notice to him was not mandatory.
Similar was the law laid down in Kumara Pillal Velayudhan Pillal v. Rayappan Nadar Asirvadom Nadar (AIR 1955 Travancore-Cochin 112).
7. The cases referred to or relied upon by the learned counsel for the parties deal with different provision. For example, the case of Anis Imam and another relates to a review application under Order XLVII, Rule 4(2) of the Code of Civil Procedure and the case of Dulal Chandra Chowdhury is not helpful as it holds that in the application the opposite party need not be named, when in fact the opposite party has been served, that is sufficient. The case of Suraj Pal Pandey and others also deals with the notice in a review under Order XLVII, Rule 4(2) of the Civil Procedure Code.
8. The upshot of the above discussion of law on the subject is that in setting aside of an ex parte decree, notice to the decree-holder as on record is sufficient. Such setting aside of the decree does not affect the auction/sale of the property in execution of the ex parte decree, nor does it affect the auction-purchaser. This general principle, however, is subordinate to another principle that where the auction-purchaser happens to be the decree-holder himself, as in this case, then the protection available to a bona fide third party-auction-purchaser, is not available to the decree- holder on the mere ground that a Court auction had taken place and the necessary certificate has been issued. The third principle that follows from these decisions is that where not only the ex parte decree is being set aside but as a consequence, the auction sale as well and the interest of the auction-purchaser are also affected adversely, then the successor-in-interest of the transferee from such auction-purchaser would also be a necessary party because it is his property whose title is being reopened by the setting aside of the ex parte decree. For this reason it will be necessary to implead him because otherwise it will amount to depriving a person, a transferee, from the auction-purchase, who is the decree-holder, of his property, without hearing him. This is against the substantive rules of justice and against principles of natural justice. Any proceedings taken adversely in respect of the person and property of an individual, without impleading him as a party, will be without jurisdiction. It was not a mere illegality committed by the District Judge while seized of the proceedings under section 115(2) of the C.P.C., but a jurisdictional error in proceedings against the property of the respondents who were at no stage impleaded.
9. The effect of the judgment given by this Court in Noor Muhammad's case, on the basis of which leave to appeal was granted, is not that a Constitution Petition is in no case permissible whatever the nature of the defect in the proceedings before the District Judge be, but that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitution Petition. Herein, it is not so much the question of a mere irregularity committed with jurisdiction, but exercise of jurisdiction not possessed in the matter of re-opening the auction sale by setting aside the ex parte decree and thereby jeopardising the rights of the respondents in the valuable immovable property bona fide if bona fide purchased from the decree-holder who happened to be auction- purchaser as well. The appeal is, therefore, dismissed. No order is made as to costs.