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Dwarka Prasad and ors. Vs. Ghulam Shabbir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All36
AppellantDwarka Prasad and ors.
RespondentGhulam Shabbir
Excerpt:
civil procedure code, sections 244, 319 - execution of decree--purchase by decree-holder at auction sale--order for delivery of possession--appeal. - .....made by the court below must be regarded as a decree under section 244, the parties being the decree-holders and the judgment-debtor. this contention is in my opinion unsound. the decree-holders, as such, were not entitled to obtain delivery of possession. it was only by reason of their having purchased the property of the judgment-debtor at auction that they could apply for possession, and it was only in their character as auction-purchasers that they did make their application for possession. their status as auction-purchasers was distinct from their character as decree-holders and as observed in the judgment of the full bench in sabhajit v. sri gopal i.l.r. 17 all. 222, it was a pure accident that the decree-holders were also auction-purchasers. as i have said above, as.....
Judgment:

Banerji, J.

1. A preliminary objection has been taken to the hearing of this appeal on the ground that no appeal lies. It appears that the respondents obtained a decree for sale against the appellant, and in execution of that decree purchased the mortgaged property. They have obtained certificates of sale and have applied under Section 319 of the Code of Civil Procedure for delivery of possession. The Court below has ordered possession to be delivered, and it is in respect of that order that this appeal has been brought. Section 588 of the Code of Civil Procedure does not allow an appeal from an order under Section 319. Mr. Madho Prasad has contended that the order made by the Court below must be regarded as a decree under Section 244, the parties being the decree-holders and the judgment-debtor. This contention is in my opinion unsound. The decree-holders, as such, were not entitled to obtain delivery of possession. It was only by reason of their having purchased the property of the judgment-debtor at auction that they could apply for possession, and it was only in their character as auction-purchasers that they did make their application for possession. Their status as auction-purchasers was distinct from their character as decree-holders and as observed in the judgment of the Full Bench in Sabhajit v. Sri Gopal I.L.R. 17 All. 222, it was a pure accident that the decree-holders were also auction-purchasers. As I have said above, as decree-holders, the respondents could not claim possession, and therefore their application for delivery of possession was not, and could not be, one under Section 244. It purported to have been made under Section 319, and that was the only section under which it could have been made. As no appeal lies from an order under Section 319, the preliminary objection must prevail and this appeal must be, and it is, dismissed with costs.


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