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Nagavva Vs. Tukaram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberR.S.A. No. 495 of 1975
Judge
Reported inILR1985KAR1036; 1985(1)KarLJ184
ActsCode of Civil Procedure (CPC) , 1908 - Sections 15, 47 and 47(3) - Order 21, Rules 95, 98, 99, 101 and 103
AppellantNagavva
RespondentTukaram
Appellant AdvocateS.C. Javali, Adv. for ;C.V. Gokavi, Adv.
Respondent AdvocateK. Rama Kamath, Adv. for R-6
DispositionAppeal dismissed
Excerpt:
.....could not exist at all.;-- section 47 -- (prior to amending act no. 65 of 1956) -- decreeholder -- auction-purchaser continues to be party to proceedings attracting section negativing a right to file a separate suit.;the appeal to the lower appellate court is competent as it arose between the parties to the suit, though the decree-holder himself was the auction-purchaser and the question did relate to the execution, discharge or satisfaction of the decree. the question is no longer resintegra though the provision of section 47(3) of c.p.c. is supplemented by the explanation provided by act no. 65 of 1956 and it has sealed the question at rest by making all auction-purchasers parties to the proceedings.;order xxi rule 103-- party claiming present possession of the property not being the..........or both is passed is enabled to file a suit to establish his right -- order under rule 98 against auction-purchaser is in proceedings under section 47 -- auction-purchaser cannot maintain a separate suit -- right of appeal available to auction purchaser -- party vested with right of appeal cannot institute a separate suit for getting the order/decree set aside.the person who can bring a suit by virtue of rule 103 of order xxi of c.p.c. cannot be the person who seeks to establish the right he claims to the present possession of the property, that person has to establish the right for possession of the property and not to maintain the presentpossession of the property. the present possession would always be with the person who has obstructed taking over the possession of the property on.....
Judgment:
ORDER

XXI RULE 103-- Party claiming present possession of the property not being the Judgement-debtor, against whom order under Rule 98 or Rule 99 or both is passed is enabled to file a suit to establish his right -- Order under Rule 98 against auction-purchaser is in proceedings under Section 47 -- Auction-purchaser cannot maintain a separate suit -- Right of appeal available to auction purchaser -- Party vested with right of appeal cannot institute a separate suit for getting the order/decree set aside.

The person who can bring a suit by virtue of Rule 103 of Order XXI of C.P.C. cannot be the person who seeks to establish the right he claims to the present possession of the property, That person has to establish the right for possession of the property and not to maintain the presentpossession of the property. The present possession would always be with the person who has obstructed taking over the possession of the property on his own account or an account of some person whom he may represent as found narrated under Rules 95 and 101 of Order XX.I ofC.P.C. Hence, it follows that, if an order under Rule 98 or Rule 99 or both is passed against a person who has obstructed taking over possession of theproperty concerned by the auction-purchaser he is enabled under Rule 103 of Order XXI of C.P.C. to institute a suit to establish his right which he claims to the present possession of the property in question provided that he is not a judgment debtor. It necessarily follows that, if an orderunder Rule 98 of Order XXI of C.P.C. is passed against the auction-purchaser that orderwill be in the very proceedings contemplated by Section 47 C.P.C. The auction-purchaser cannot therefore, maintain aseparate suit. A right of appeal is conferred on such auction-purchase.... When the right of appeal is vested in a party to challenge the order or decree, that party cannot, in law, institute a separate suit for getting such an order or decree set aside.


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