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Sadashiv Mahadu Dhole Vs. Narayan Vithal Mawal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 135 of 1910
Judge
Reported in(1911)13BOMLR661
AppellantSadashiv Mahadu Dhole
RespondentNarayan Vithal Mawal
Excerpt:
.....act (ix of 1908) article. 138-transfer of property act (iv of 1882) section 90-purchase by decree-holder -suit to recover possession by decree-holder's representatives.;at a sale in execution of a redemption decree the decree-holder (mortgagee) himself purchased the property in i899. the sale was confirmed in 1900. in 1909, the representative of the decree-holder (auction purchaser) brought a suit to recover possession of the property so purchased. the defendants (representatives of the judgment-debtors, mortgagors) contended that as the question involved in the suit related to the execution of the decree, the suit was not maintainable under section 47 of the civil procedure code, 1908 and that the plaintiff's remedy lay under order xxi, rule 5. the first court decreed the claim...........defendant no. 1 is the son of one of the judgment-debtors. plaintiff is the son and heir of the decree-holder who purchased the property at the court-sale held in execution of his decree. it is contended for the respondent that the decree-holder ceases to be a party to the suit after he purchases the property at the court-sale, and that he is entitled to possession of the property in his character as auction-purchaser, and not as a decree-holder. we are unable to accede to this contention. in madhusudan das v. gobinda pria chowdhurani ilr (1899) cal. 34 macpherson and stevens jj. hold that the plaintiff (decree-holder) is none the less a party to the suit because he happens to be an auction-purchaser. in ham narain sahoo v. bandi pershad ilr (1904) cal. 737, the court observes, that.....
Judgment:

Rao, J.

1. The facts of the case are briefly these. The property in dispute was originally mortgaged by defendant No. 1'S father and uncle to plaintiff's father. On 14th February 1885 a decree was passed directing the mortgagors to pay Rs. 7,905-4-3 by seven equal yearly instalments. In default of payment of any instalment at the due date, the mortgaged property was to be sold for the whole sum due. Default having been made in payment of the instalments, the mortgagee put up the property to sale, and purchased it himself on 29th November 1899. The sale was confirmed on 6th January 1900.

2. On 7th April 1909 plaintiff, who is the son and legal representative of the auction-purchaser, filed the present suit for possession of the property purchased in 1899. Defendants resisted the claim on several grounds, but their contentions were overruled and a decree was passed in plaintiff's favour, awarding him possession of the property in suit except one piece of land, Prat-bandi No. 14, as to which plaintiff's title was not, proved.

3. Against this decree defendant No. 1 appeals to this Court. The main question argued in appeal is, whether the suit is barred by Section 47 of the Code of Civil Procedure, 1908.

4. Section 47 provides that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to execution, discharge or satisfaction of a decree, shall be determined by the Court executing the decree and not by a separate suit. We have to consider (1) Whether the questions involved in the present suit arise between the parties to the suit in which the decree was passed or their representatives, and (2) Whether they are questions relating to execution of the decree. The judgment-debtors are dead. Defendant No. 1 is the son of one of the judgment-debtors. Plaintiff is the son and heir of the decree-holder who purchased the property at the Court-sale held in execution of his decree. It is contended for the respondent that the decree-holder ceases to be a party to the suit after he purchases the property at the Court-sale, and that he is entitled to possession of the property in his character as auction-purchaser, and not as a decree-holder. We are unable to accede to this contention. In Madhusudan Das v. Gobinda Pria Chowdhurani ILR (1899) Cal. 34 Macpherson and Stevens JJ. hold that the plaintiff (decree-holder) is none the less a party to the suit because he happens to be an auction-purchaser. In Ham Narain Sahoo v. Bandi Pershad ILR (1904) Cal. 737, the Court observes, that the fact that the decree-holder is also an auction-purchaser does not make s. 244 of Act XIV of 1882 the less applicable to the case. Similarly the Madras High Court observes in Kasinatha Ayyar v. Uthumansa Rowthan ILR (1901) Mad, 529: 'It would be impossible to hold that having been a party to the decree, he ceased to be a party because he purchased the property at the sale held in execution.' No doubt in Bhagwati v. Banwari Lal, ILR (1908) All 82 a Full Bench of the Allahabad High Court hold, that although the same person may be the decree-holder and the auction-purchaser, he fills two different capacities, and it is in the latter capacity only that he can apply for and obtain possession. With all respect for the opinion of the majority of the Full Bench of the Allahabad High Court, we agree in the view taken by the Calcutta and Madras High Courts, that a decree-holder by becoming a purchaser at a sale held in execution of his decree does not cease to be a party to the suit within the meaning of Section 47 of the Civil Procedure Code.

5. The next question is, whether the plaintiff's claim for delivery of possession of the property in dispute is a question relating to execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Civil Procedure Code. It is contended that the execution proceedings came to an end when the property was sold and the sale confirmed. This contention does not appear to us to be sound. We are of opinion that proceedings in execution (so far as the decree-holder is concerned) are not completed until the decree-holder obtains the benefit of the sale held in execution of his decree. In Bapuchand v. Mugubrao ILR (1896) 22 Bom. 340, it was held by this Court that an application by a judgment-creditor for payment to him of money which has been paid into Court on his account in execution of his decree, is an application to take a step in aid of execution of the decree. In that case Farran C.J. observes that when money is paid into Court in satisfaction of a decree, the execution of the decree with regard to such payment is not fully completed till the money has been actually paid by the Court to the judgment-creditor. That is also the view taken by the Madras arid Allahabad High Courts. See Koormayya v. Krishnamma Naidu ILR (1893) Mad. 165, Paran Singh v. Jawahir Singh ILR (1884) All. 366, and Sujan Singh v. Him Singh ILR (1889) All. 399. If then an application made by a decree-holder to be paid the proceeds of a sale held in execution of his decree is a step in aid of execution, we do not see any difference in principle between such an application and an application made by a decree-holder, who is also the auction-purchaser, to be put in possession of that which represents the money which would have been paid into Court, if a third party had purchased the property. We think that the execution of the decree is not complete and final, until in the one case the decree-holder actually receives the sale proceeds through the Court, and in the other case until he secures possession of the property through the Court. Accordingly it is held that an application by a decree-holder to be put in possession of the property which he has purchased in execution of his decree is a step in aid of execution of that decree. See Sariatoola Mollav. Raj Kumar a Roy ILR (1900) Cal.709; Lakshmanan Cheltiar v. Kannammal ILR (1900) Mad. 185; Kasinatha Ayyar v. Uthumansa Rowthan ILR (1901) Mad. 529 Y, Moti Lal v. Makund Singh ILR (1897) All. 477. 'The object of the application for delivery of possession,' as observed by Maclean C.J. in Sariatoola Molla v. Raj Kumar Roy ILR (1900) Cal. 709, 'is to complete, by giving possession, the purchase which the applicant has made. It is a step in aid of execution in the sense that it is a step to make that which had been done final and complete, and in this sense to aid the execution which can hardly be said to have been complete.'

6. This being the case, proceedings for delivery of possession to the auction-purchaser are proceedings in execution of a decree, and fall within the scope of Section 47 of the Civil Procedure Code. See Madhnsudan Das v. Gobind a Pria Chowdhurani, ILR (1899) Cal. 34; Ram Narain Sahoo v. Bandi Pershad ILR (1904) Cal. 737; Kattayat Pathumayi v. Raman Menon ILR (1902) Mad. 740; Kashinatha Ayyar v. Uthumansa Rowthan ILR (1901) Mad. 529, Muttia v. Appasami ILR (1890) Mad, 5o4.

7. But it is argued by Mr. P.P. Khare for respondents that Article 138 of the Limitation Act allows a suit to be brought by an auction-purchaser to recover possession of the property sold within twelve years from the date of confirmation of the sale. It is true that in Article 138 no distinction is made between a purchaser who is a decree-holder and a purchaser who is not a decree-holder. But Article 138 does not override the provisions of Section. 47 of the Civil Procedure Code. The two should be read together. Where the auction purchaser is also a party to the suit in which the decree was passed, his claim for delivery of possession of the property purchased by him must be determined by the Court in the execution department. But where the auction-purchaser is a third party, it is open to him to bring a suit for possession of the property purchased by him, and such a suit will be governed by Article 138 of the Limitation Act.

8. It is lastly contended that in the present case the decree in execution of which the property was sold being a decree for sale of the property mortgaged, the mortgagee-decree-holder was entitled under s. 88 of the Transfer of Property Act to the sale proceeds only, and not to possession of the property sold, and that when the sale took place, the execution proceedings came to an end. The answer to this contention is that Section 90 of the Transfer of Property Act shows that the execution proceedings do not terminate with the sale; if the sale proceeds are insufficient to pay the mortgage debt, the decree-holder has to take further steps to recover the balance of the decretal amount.

9. On all these grounds we hold that the plaintiff's claim for delivery of possession of the property in suit falls within Section 47 of the Civil Procedure Code, and that this suit cannot lie. We would have allowed the present suit to be treated as a proceeding in execution, but for the fact that the execution of the decree was barred by limitation at the date of the suit.

10. Mr. Bhide for the appellant contended that defendant No. 1 was a minor, that his estate was not properly represented in the execution proceedings, in the course of which the land was sold, and that therefore the sale was a nullity. He contends that there was fraud on the part of the decree-holder in representing to the Court that the minor's mother was dead though in reality she was alive, and in getting a distant relation of the minor appointed as a guardian-ad-litem. The lower Court has found that the allaged fraud is not proved, and that the minor's estate was sufficiently represented during the execution proceedings, We see no reason to come to a different conclusion. There is no evidence whatever to prove the alleged fraud.

11. We set aside the decree of the lower Court, and dismiss the suit with costs throughout.


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