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Savlaram Gangaram Vs. Vishwanath Anant - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 139 of 1943
Judge
Reported inAIR1945Bom386; (1945)47BOMLR320
AppellantSavlaram Gangaram
RespondentVishwanath Anant
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rules 95, 103 - mortgage, decree-sale of property in execution of decree-property purchased by decree-holder-application by decree-holder under order xxi, rule 95, to take possession of property-contention of judgment-debtor that property sought to be recovered not comprised in certificate of sale -contention not upheld-appeal by judgment-debtor whether competent.;when mortgaged property is sold in execution of a mortgage decree and is purchased by the decree-holder at the auction sale, the question whether the property sold was included in the sale certificate is not a question relating to execution, discharge or satisfaction of the decree within the meaning of section 47 of the civil procedure code, 1908, and no appeal lies..........to be conclusive. but there is nothing in rule 103 to prevent a judgment-debtor, from bringing a suit for possession of property given to an auction-purchaser as the result of an order under rule 95 or rule 97 on the ground that the property of which he has been deprived was not included in the certificate of sale; and that suit presumably would be subject to the ordinary rules of limitation regarding suits for possession' of property based on title, a decree-holder who wants possession; has the option1 of a speedy remedy under rule 95 or a suit on title; but if he chooses to apply under rule 95 and fails, his further remedy is confined to rule 103. but a judgment-debtor has no such option; he: cannot prevent the decree-holder applying under rule 95 and making him a party to the.....
Judgment:

Macklin, J.

1. The property of the judgment-debtor was sold in execution of a mortgage decree and was bought by the decree-holder himself. On coming to take possession he was obstructed, and he had to ask for the help of the Court under Order XXI, Rule 95. The contention of the judgment-debtor was that the property of which the decree-holder-auction-purchaser was trying to take possession had not all been included in the sale; and that question was decided against the judgment-debtor on the ground that it was at any rate included in the mortgage and therefore must be deemed to have been included in the mortgage decree and in the certificate of sale. The judgment-debtor now comes in appeal and is met by a preliminary objection that no appeal lies, since this is not a question arising under Section 47 of the Civil Procedure Code.

2. It appears that there is a conflict of decisions among the various High Courts as to a decree-holder who is also an auction-purchaser being still liable to be regarded as a party to the suit. If he is not a party to the suit, then of course Section 47 does not apply and no appeal would lie in such a matter, and it would be open to the auction-purchaser to sue independently of Section 47 and independently of any proceedings in execution. The view that he is not a party to the suit must perhaps be regarded as no longer tenable in view of the decision of the Privy Council in Ganapathy Mudaliar v. Krishnamachariar (1917) L.R. 45 I.A. 54 : 20 Bom. L.R. 580. However that may be, the question is whether all the conditions governing Section 47 are satisfied in this particular case. Even if we assume for the sake of argument that an auction purchaser who is also a decree-holder can be regarded either as a party to the suit or as a representative in interest of the judgment-debtor and that the judgment-debtor is also a party to the suit, the question to fall under Section 47 of the Civil Procedure Code would have to be a question relating to the execution, discharge or satisfaction of the decree. We have the authority of a full bench of this High Court in Hargovind Fulchand v. Bhudar Raoji (1924) I.L.R. 48 Bom. 550 : S.C. 26 Bom. L.R. 601, F.B., to show that a decree-holder-auction-purchaser seeking to get possession of the property which he has bought does so not in execution, of his decree but by virtue of a title acquired as purchaser, so that no question relating to the decree arises and Section 47 is not a bar to his suit. We do not know what the defence was on the merits, as the report is silent on that point. But prima facie we think that the question involved in giving an auction-purchaser possession of the property which he has bought cannot ordinarily be a question relating to the execution, discharge or satisfaction of the decree, unless the words 'relating to' are unduly extended. After all in this case (and in most cases of the kind) the decree was satisfied not by the possession of the auction-purchaser but by the fact of the sale; and thereafter no question relating to the execution of the decree any longer remained. Even if it was found impossible for various reasons to give the auction-purchaser actual possession or even symbolical possession of the property, the fact would remain that the decree was satisfied by the sale.

3. We have been referred to the decision of the Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker (1921) L.R. 48 I.A. 155 : S.C. 24 Bom. L.R. 692, where a long time after an auction-purchaser had taken possession of the property under his purchase the judgment-debtor tried to have the sale repudiated; and in that particular case their Lordships said that, if a mortgage decree included by oversight lands not subject to the mortgage and the lands were therefore sold at a court-sale and covered by the certificate of sale, it was open to the mortgagor to take proceedings under Section 47 within the period allowed, but that if such proceedings were not taken in time, the title under the certificate of sale would have to be regarded as unimpeachable. But that is not at all the position which we have here. The facts are not clearly stated in the judgment of the Privy Council, but it is clear that the judgment-debtor was raising a question as to the validity of the sale. It is true that just as in this case he was basing his case on the fact that the mortgage deed did not include the lands which were made the subject of the sale; but he was doing so in order to impeach the validity of the sale. Here the judgment-debtor is referring to the mortgage (and the learned Judge also is referring to the mortgage) not in order to decide upon the validity of the sale, which undoubtedly would be a question falling within Section 47 of the Code, but in order to see what property was-actually sold. That is an entirely different question and one which in our opinion and in the opinion of the full bench of this Court is not covered by Section 47 of the Code, because it is not a question relating to the execution, discharge or satisfaction of the decree, the decree having already been fully satisfied.

4. Mr, Desai argues that if indeed the; question which we have here is not to be regarded as a question falling under Section 47, then a judgment-debtor against whom it is decided that the lands which he seeks to retain were included in the sale has no further remedy; and he points to Order XXI, Rule 103 (read with the Limitation Act), which gives any one other than the judgment-debtor the right to bring a suit within one year in the event of an adverse order under Rule 96 or Rule 97 having been passed; against him. But in our view that is a misreading of the implication of Rule 103. When a question is decided under Rule 95 or 97, as here, and an order is passed against any one other than the judgment-debtor, the person against whom the order is passed may indeed bring a suit,, but is compelled by the rule to bring it within the period limited by the rule; and the rule provides that subject to the result of such a suit the order is to be conclusive. But there is nothing in Rule 103 to prevent a judgment-debtor, from bringing a suit for possession of property given to an auction-purchaser as the result of an order under Rule 95 or Rule 97 on the ground that the property of which he has been deprived was not included in the certificate of sale; and that suit presumably would be subject to the ordinary rules of limitation regarding suits for possession' of property based on title, A decree-holder who wants possession; has the option1 of a speedy remedy under Rule 95 or a suit on title; but if he chooses to apply under Rule 95 and fails, his further remedy is confined to Rule 103. But a judgment-debtor has no such option; he: cannot prevent the decree-holder applying under Rule 95 and making him a party to the application, and Rule 95 in its very nature gives no scope for the judgment-debtor to apply under it. That presumably is why Rule 103 does not provide for any suit by the judgment-debtor.

5. It is also pointed out that Rules 95 to 103 occur in the Order dealing with execution. But in our view that does not mean that they deal with matters relating to the execution of a decree within the meaning of Section 47.

6. Mr. Desai also contends that in the present case there is a further question in addition to the question as to the identity of the property included in the certificate of sale. He says that according to the written statement of the judgment-debtor a question as to the bar of res judicata was raised in view of the fact that the plaintiff at an earlier stage of the proceedings had been directed to get the decree amended so as to include a more adequate description of the property and that the plaintiff had failed to do so. But we do not see how this contention extends the scope of the real question before the Court. Even assuming that by reason of the principle of res judicata it is not possible for the plaintiff to get the decree amended, or to get the description of the property in the certificate of sale or in the proclamation of sale or in any other paper further amended, the sole question to be determined in this matter would still be the question of the identity of the property comprised in the certificate of sale; and that, as we have already held, is not a question falling under Section 47. It follows that no appeal lies. The further question is whether this can be treated as a matter within the scope of Section 115 of the Civil Procedure Code. The question is not whether certain land was wrongly sold but whether certain land was in fact sold. But, whatever may be the correct way of stating the question for determination, it is difficult to see how a question of jurisdiction is involved. If in fact the question had been whether the land was wrongly sold (a question which would certainly fall within Section 47 of the Code), it would still be within the jurisdiction of the Court to decide it, and a wrong decision would not bring it within the scope of Section 115. So, too, when the question is whether certain land was in fact sold. That also is not a question involving jurisdiction.

7. Mr. Desai attempted to argue that putting a person in possession of property which he has not bought is an act beyond the jurisdiction of the Court, and a wrong decision on this question would ultimately involve the Court in wrong doing. But the Court has jurisdiction to act in accordance with its own orders; and if the order itself is within its jurisdiction even when wrong, any further action in accordance with the order will still be within the scope of its jurisdiction. The matter therefore fails also as an application under Section 115 of the Civil Procedure Code.

8. I make it clear that we have not decided anything in connection with the merits of the dispute.

9. The appeal is combined with a Civil Revision Application in the alternative. The appeal is dismissed with costs, and the Civil Revision Application is dismissed. The Civil Application for stay is dismissed with costs, and the Civil Application for permission to add grounds to the appeal is dismissed without costs.


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