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Hargovind Fulchand Vs. Bhudar Raoji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 144 of 1923
Judge
Reported in(1924)26BOMLR601; 83Ind.Cas.932
AppellantHargovind Fulchand
RespondentBhudar Raoji
Excerpt:
civil procedure code (act v of 1008), section 47--decree-holder auction-purchaser--suit to recover possession not barred by section 47--indian limitation act (ix of 1908), article 138, from the decision of k.j. desai.;an auction-purchaser, who is himself the decree holder, can sue to recover possession of the property purchased by him at the court sale, irrespective of the provisions of section 47 of the civil procedure code.;sadashiv bin mahadu v. narayan vithal (1911) i.l.r. 35 bom. 452, s.c. 13 bom. l.r. 661, overruled. - - the answer which i think is the right one cannot be put more precisely than in the words of mr. these sections correspond with order xxi, rule 95, of the code of 1908. if he did not so apply or if his application was unsuccessful, he could, in my opinion, fall..........says:--we are inclined to think that section 47 does not apply to the case at all, not because the decree-holder purchaser is not a party to the suit within the meaning of section 47--for we think he is such a party, but because the question as to delivery of possession cannot be said to be a question relating to the execution, discharge or satisfaction of the decree' within the moaning of section 47. the following are the main points of distinction between the two views:--(1) according to the former view, that is, the view taken by the high courts of bombay and madras and on some cases by the high court of calcutta, a decree-holder purchasor, who is resisted by the judgment-debtor in taking i lossession of the property purchased by him at the auction sale, can proceed only by an.....
Judgment:

Norman Macleod, C.J.

1. This suit was instituted by the plaintiff to recover possession of the suit property which his father had bought at an auction sale in execution of a decree for money which he had obtained against the defendant. The sale was held on September 21, 1908, and was confirmed on October 29, 1908. Thereafter the sale certificate was issued by the Court. The defendant continued in possession and the plaintiff's father did not seek possession. When the plaintiff filed this suit on August 20, 1920, the defendant objected that it was barred by Section 47, Civil Procedure Code.

2. Both the lower Courts felt themselves bound to follow the decision of this Court in Sadashiv bin Mahadu, v. Narayan Vithal. I L.R. (1911) 35 Bom. 452, 13 Bom. L.R. 661. The correctness of that decision, although it was not directly in-point, was doubted in Goba Nathu v Sakharam : (1920)22BOMLR1101 , where I stated that I would prefer to follow the decision of the majority of the Full Bench of the Allahabad High Court in Bhagwati v. Banwari Lal. I.L.R. (1908) All. 82 We are now asked to decide whether the question between the plaintiff and the defendant is a question -'relating to the execution, discharge or satisfaction of the decree' which would, under the provision of Section 47 of the Civil Procedure Code, have to be determined by the Court executing the decree and not by a separate suit. There are a very large number of decisions on the question which has given rise to a considerable divergence of judicial opinion.

3. It is considered by Mr. Justice Mulla in the 7th Edition of his Code at page 125 where he says:--

We are inclined to think that Section 47 does not apply to the case at all, not because the decree-holder purchaser is not a party to the suit within the meaning of Section 47--for we think he is such a party, but because the question as to delivery of possession cannot be said to be a question relating to the execution, discharge or satisfaction of the decree' within the moaning of Section 47. The following are the main points of distinction between the two views:--

(1) According to the former view, that is, the view taken by the High Courts of Bombay and Madras and on some cases by the High Court of Calcutta, a decree-holder purchasor, who is resisted by the judgment-debtor in taking I lossession of the property purchased by him at the auction sale, can proceed only by an application under Order XXI, rule 95, coupled with Section 47, and such application should be made within three years from the date on which the sale becomes absolute.

According to the latter view, that is the view taken by the High Courts of Allahabad, Patna and Lahore and in a large majority of cases by the High Court of Calcutta, he may proceed by an application under Order XXI, rule 95, or ho may proceed by way of suit. The period of limitation for a suit is twelve years from the date when the sale becomes absolute, so that even if the time for an application has expired, he may prosecute his remedy by way of suit.

4. Article 138 of the Indian Limitation Act specially provides for a suit by a purchaser at a sale in execution of a decree, when the judgment-debtor is in possession at the date of the sale. There is no reason why the word 'purchaser' should not include a decree-holder who with the leave of the Court becomes a purchaser. is there any reason then why the decree-holder purchaser should be debarred from filing such a suit? Whatever way we decide it the point to my mind is so simple that I do not wish to add to the literature which has accumulated around it. The answer which I think is the right one cannot be put more precisely than in the words of Mr. Justice Griffin in Bhagwati v. Banwari Lal I.L.R. 31 (1908) All. 82:

On the facts found in the present case the decree-holder auction-purchaser might have applied to be placed in possession, under the provisions of section 318 and section 319 of the Code of Civil Procedure. These sections correspond with Order XXI, rule 95, of the Code of 1908. If he did not so apply or if his application was unsuccessful, he could, in my opinion, fall back upon his title and sue for possession. That title he derived not from the decree, which, in so far as it was a decree for sale, had expended its force, but from his purchase. Under Article 138 of Schedule II to the Indian Limitation Act he could bring his suit within twelve years from the date of the sale. Neither in the Code of Civil Procedure nor in the Indian Limitation Act is there any distinction drawn between a decree-holder auction-purchaser and a stranger auction-purchaser.

5. The argument that a decree-holder does not get the benefit of his decree (in execution) until he gets possession as purchaser and that therefore there still remains a question with regard to the execution and satisfaction of the decree was met by Mr. Justice Banerji in the same case in the following passage at pp. 100 and 101:

I am also unable to hold that if the decree-holder happens to be the auction-purchaser the property purchased by him may be regarded as the proceeds of the sale or the fruits of the decree. The proceeds of the sale consist of the purchase money for which the property was sold and it is the amount of this purchase money which the decree-holder obtains as the fruits of the decree. If he purchases the property he does not got it as an equivalent of the amount of his decree but he has to pay the purchase money, and he may do so, either in cash or by setting it off against the amount of his decree. In the present case the property was sold for Rs. 400, whereas the amount of the decree was Rs. 87 only. The purchaser had to pay the purchase money in cash and she got the property, not in lien of the amount of her decree but for a much larger sum. The purchase of the property can, therefore, in no sense be regarded as acquisition of the fruits of the decree, and failure to obtain possession of the property cannot affect the decree itself. Even if the decree be one for sale upon a mortgage, and a, sale takes place in pursuance of it, delivery of possession to the purchaser is not made under the decree.

6. In my opinion the decree-holder purchaser does not seek to get possession in execution of his decree but by virtue of his being declared the purchaser at the auction sale. Therefore I cannot agree with the decision of this Court in Sadanshiv bin Mahadu v. Narayan Vithal which, with all due respect, I think was wrongly decided. This appeal must be allowed and the case must be remanded to the lower Court for trial on the merits.

Shah, J.

7. I agree. The question is not free from difficulty. But on the best consideration that I can give to the question I have come to the conclusion that the correct view is that the claim made by the auction-purchaser, for possession based on the title acquired as auction-purchaser, even though he may be the decree-holder does not relate to the execution, discharge or satisfaction of the decree. That question generally speaking is outside the scope of Section 47 of the Code. Though it is between the same parties it cannot be said to relate to the 'execution, discharge, or satisfaction of the decree.' In Prosunno Coomar Sanyal v. Kasi Das SanyalT and in Ganapathy Mudaliar v. Krishnamachariarm the questions that arose related to the execution of the decree. Even when Section 47 is liberally interpreted it is difficult to include within its scope a claim based on the title of the auction-purchaser, which is distinct from the execution, satisfaction or discharge of the decree. In the present case there is no question as to the validity of the Court sale.

8. Where the validity of the sale is questioned, it may be said that the questions arising in the suit may relate to the execution, discharge or satisfaction of the decree, in execution whereof the sale is held. In the present case the decree-holder in execution of the money decree in his favour purchased the right, title and interest; of his judgment-debtor and his claim to recover possession on the strength of that title would be outside the scope of Section 47 of the Code of Civil Procedure.

Crump, J.

9. I agree with the judgment pronounced by my Lord the Chief Justice.


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