G.K. Govinda Bhat, J.
1. This Second Appeal has been referred to a Bench of Malimath. J. as a substantial question of law on which there is no decision of this court is involved in the case.
2. The plaintiff was the decree-holder in Original Suit No. 14 of 1951-52 on the file of the court of the Second Munsiff. Mysore and became purchaser of the suit schedule lands which were sold in execution of that decree- The sale was confirmed on 14-2-1959 and the sale certificate was issued on 13-4-1961; but he did not apply for delivery of the property purchased under Order 21, Rule 95 of the Code of Civil Procedure. He instituted No. 68 of 1963 in the same court on 23-2-1963 for partition and possession of items Nos. 1, 2 and 4 and for possession if items Nos. 5 and 6 and for mesne profits from date of suit till delivery of possession.
3. Defendants 3. 4. 7 and 8 alone contested the suit. Their contention, inter alia, was that the suit is barred by Section 47 of the Code of Civil Procedure and that the suit for partition of Items 1, 2 and 4 was not maintainable as the plaintiff had purchased defined portions of the lands.
4. The learned trial Judge upheld the contentions of the defendants and dismissed the plaintiff's suit. The lower appellate court has affirmed the decree of the trial court. Hence this second appeal by the plaintiff. During the pendency of the appeal, the appellant having died, his legal representatives have been brought on record.
5. The sole question of decision is whether a suit instituted by the decree-holder auction purchaser for recovery of possession of the property purchased in execution of the decree is barred by the provisions of Section 47 of the Code. On this question there is divergence of opinion among the High Courts. The High Courts of Allahabad, Bombay, Patna, Lahore and Rangoon have held that such a question is not one relating to the execution, discharge or satisfaction of the decree. The High Courts of Calcutta, Madras and Nagpur have taken a contrary view.
6. In Kattayat Pathumayi v. Raman Menon, (1903) ILR 26 Mad 740, Benson and Bhashya Ayyangar. JJ. while following the earlier decision of the Madras High Court observed that 'if the questions were not already settled by more decisions than one of that court, they should entertain considerable doubt as to whether proceedings taken by a purchaser to obtain possession of the property purchased could be regarded as relating to the execution, discharge or satisfaction of the decree within the meaning of Section 244 of the Civil P. C.' In Sandhu Taraganar v. Hussain Sahib, (1905) ILR 28 Mad 87. Sir Arnold White. Chief Justice observed that if the matter were res integra he should be disposed to hold that the question is not one relating to the execution, discharge or satisfaction of the decree.
7. On account of conflict of decisions in the Calcutta High Court, the question was referred to a Full Bench of five Judges in Kailash v. Gopal. AIR 1926 Cal 798 (FB). Four out of the five learned Judges were of the opinion that the question relates to the execution, discharge or satisfaction of the decree, Coming. J. dissented from the majority. Chakravarti. J. who sided with the majority stated that strong and cogent arguments may be advanced on either side of the question. The majority opinion was ultimately based on the ground that the question being a question of procedure, they should not lightly disturb the view taken by that court and followed for a long time unless such a view is inconsistent either with the language of the Code or any authoritative judgment of the Judicial Committee of the Privy Council. Coming, J. in his dissenting opinion gave good reason for the view that he has taken that the question does not relate to execution, discharge or satisfaction of the decree.
8. It will not be profitable to discuss the cases supporting the divergent views. Briefly stated, the grounds for the decisions holding the view that Section 47 bars a suit for delivery of possession by a decree-holder auction purchaser are: (1) the decree-holder auction-purchaser is a party to the suit and he does not cease to be a party to the suit after the sale. (2) the sale Cannot be said to be complete without delivery of possession of the properties sold: the property purchased represents money for which the decree-holder obtained his decree. He does not actually get the benefit of the money due under his decree until he Sets possession of the property of the judgment-debtor purchased by him and he is entitled to ask the court to put him in possession of the property purchased and the court is bound to give him possession. (3) Arrangement of the provisions of the Code relating to execution indicates that proceedings for delivery of possession are proceedings relating to execution of the decree. (Vide AIR 1926 Cal 798 (FB)).
9. The grounds for the decisions which have taken contrary view are: (1) the decree-holder auction purchaser is not a party to the suit; (2) the decree is satisfied by the sale of the property and the payment to the decree-holder of the money so realised and the auction sale is complete when confirmed. It may be set aside for various reasons, but failure to get possession by the auction-purchaser is not one of them and the validity of the sale does not depend upon the purchaser getting possession. He does not get possession by virtue of the decree but by virtue of the sale. The application for delivery of possession is one of the results of the execution of the decree after it has been executed, but it does not relate to the execution of the decree-The execution terminates with the confirmation of the sale and the payment of the money to the decree-holder.
If delivery of possession is a question relating to execution of the decree, the failure on the part of the decree-holder purchaser to obtain possession after his purchase, should entitle him to again execute the decree for the amount he has paid for the purchased property: because his decree would then have to be considered as unsatisfied to that extent.
(3) The rules relating to delivery of possession found under Order 21 of the Code is headed 'Execution of decrees and orders' and not of decrees only. On an application under Rule 95 or 96. the court orders delivery of possession to be made and this order the court executes. If it were part of the execution of the decree, no further order would be necessary. Vide (i) the opinion of Coming J. in Kailash v. Gopal. AIR 1926 Cal 798 (FB). (ii) the opinion of Benerji. J. in Bhagwati v. Banwari Lal. (1991 ILR 31 All 82 (iii) Tribeni Prasad v. Ramasray Prasad, AIR 1931 Pat 241 (FB) (iv) Hargovind Fulchand v. Bhudar Raofi. AIR 1924 Bom 429 (FB) and (v) Surai Dei v. Gulab Dei. : AIR1955All49 (FB).
10. The explanation to Section 47 of the Code was amended in 1956. That amendment enacts that for the purpose of the section, a purchaser, at a sale in execution of the decree is a party to the suit. The result of the amendment is to set at rest the controversies as to whether the auction-purchaser is representative of either party and if so of which of them. He must now be regarded as a party. In view of the said amendment, one of the grounds on which the view of the High Courts of Allahabad. Patna etc., is based is no longer valid. Even though the decree-holder purchaser must now be regarded as a party to the suit, it is still necessary to bring the question under the section that it should relate to execution, discharge or satisfaction of the decree.
11. All the High Courts seem to hold that where an auction-purchaser who is a stranger is resisted in obtaining possession by the judgment-debtor of the property purchased by him in execution, he may apply for delivery of possession under Order 21, Rule 95 or he may bring a regular suit for possession. Vide Mulla's Commentary on Civil Procedure Code. 13th Edition, Vol. I. page 240.
12. It was not disputed before us by the learned counsel for the contesting respondents that an auction purchaser who is a stranger is not barred by Section 47 of the Code from bringing a regular suit for possession. After the amendment of the explanation to Section 47, to which we have referred, we are unable to make any distinction between the case of a decree-holder auction-purchaser and a third party auction-purchaser. If the question of delivery of possession in the case of an auction-purchaser who is a stranger is not a matter relating to execution, discharge or satisfaction of the decree, such a question in the case of decree-holder auction-purchaser also cannot be a question relating to execution, discharge or satisfaction of the decree.
13. Where a decree-holder applied under Section 51(b) real with Rule 11 (j) (ii) (ii) of Order 21 of the Code for the execution of the decree by sale of the property, the court directs the sale under Order 21. Rule 64, in order to satisfy the decree and pays the proceeds of the sale or a sufficient portion thereof to the party entitled under the decree. On the confirmation of the gale of the property and the payment of the proceeds of the sale to the decree-holder or by the purchase money being set off against the amount due under the decree, the decree is satisfied. The delivery of property to the auction-purchaser is by virtue of the sale effected by the court. If delivery of possession is also a matter relating to execution of the decree, the logical con-sequence that should follow where the auction-purchaser fails to secure possession is that the decree should be regarded as remaining unsatisfied and he should be able to execute the decree once again. We arc in respectful agreement with the reasoning of Coming. J. in his dissenting opinion in AIR 1926 Cal 798 (FB) and of Jwalaprasad, J. in AIR 1931 Pat 241 (FB). In our judgment delivery of possession of property purchased in execution sale is not a question relating to execution, discharge or satisfaction of the decree. Therefore, if the auction-purchaser fails to secure possession by making an application under Order 21, Rule 95, he is not barred by Section 47 of the Code from recovering possession by instituting a suit. In that view of the law the decree of the court below has to be reversed.
15. The appeal, therefore, is allowed, the decree of the court below is reversed and the plaintiff's suit for possession of the plaint schedule properties with mesne profits from the date of suit until delivery of possession is decreed. The mesne profits however shall be determined after enquiry as provided by Rule 12 of Order 9 of the Code.
16. In the circumstances, no costs.