Skip to content


Seth Kedar Nath Vs. K. Arun Chandra Sinha - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1937All742
AppellantSeth Kedar Nath
RespondentK. Arun Chandra Sinha
Excerpt:
- - 16 as well as a kothi with a garden and a kuohery house in the same town were allotted to his share. the decree was to that extent satisfied. the full bench clearly laid down that the title becomes vested in the auction purchaser as a result of the confirmation of the sale independently of the question whether a certificate is subsequently taken out or not. in this respect his position is no better and should be no worse than that of any other purchaser. strong reliance has been placed by the learned advocate for the appellant, as well as in the judgments of the full benches of the madras and calcutta high courts referred to above, on two rulings of their lordships of the privy council which turn on the interpretation of section 244 of act 14 of 1882. in prosunno kumar sanyal v......sulaiman, c.j.1. in this case the judgment-debtor respondent had owned several properties which were divided in a partition suit and two items described as anupshahr banjar no. 15 and anupshahr khadar no. 16 as well as a kothi with a garden and a kuohery house in the same town were allotted to his share. in 1925, along with other properties, he made two mortgages of the properties anupshahr banjar and anupshahr khadar (nos. 15 and 16) without specifying whether they inoluded or exoludad the kothi and the kuohery, which were situated within the area of no. 15. in 1927 a suit was brought for sale on the basis of both these mortgage deeds and a decree was obtained which was made final and was then executed on 21st may 1932. some of the other properties were sold at auction and purchased by.....
Judgment:

Sulaiman, C.J.

1. In this case the judgment-debtor respondent had owned several properties which were divided in a partition suit and two items described as Anupshahr Banjar No. 15 and Anupshahr Khadar No. 16 as well as a kothi with a garden and a kuohery house in the same town were allotted to his share. In 1925, along with other properties, he made two mortgages of the properties Anupshahr Banjar and Anupshahr Khadar (Nos. 15 and 16) without specifying whether they inoluded or exoludad the kothi and the kuohery, which were situated within the area of No. 15. In 1927 a suit was brought for sale on the basis of both these mortgage deeds and a decree was obtained which was made final and was then executed on 21st May 1932. Some of the other properties were sold at auction and purchased by the decree-holder with which we are not concerned in this appeal. On 30th July 1932 the properties Banjar No. 15 and Khadar No. 16 were sold at auction and purchased by the decree, holder; the sale was confirmed and a sale certificate was granted to the deoreo-holder auction-purchaser. It is to be noted neither in the plaint nor in the mortgage-decree nor in the proclamation of sale nor in the sale certificate was there any specific mention of the kothi or the kuohery. The properties sold were described as Anupshahr Banjar No. 15 and Anupshahr Khadar No. 16. On 28th Maroh 1933 the decree-holder purchaser applied under Order 21, Rule 95, and in the application he described the properties as Anupshahr Banjar and Anupshahr Khadar. Delivery of possession was effected under the order of the Court through the Court amin and the purchaser executed the dakahalnama on 21st April 1933 admitting that possession of the properties purchased by him had been delivered to him by the amin. The decree was to that extent satisfied.

2. On 2nd February 1934 the decree, holder purchaser filed ah application out of which the present appeal has arisen claiming possession over the kotbi, bagh and the kuchery in particular, alleging that the amin in the previous year had omitted to deliver possession to him of these properties and the Court should therefore order that the possession of the same should be delivered to him. There was no suggestion that there had been any resistance by the judgment-debtor. The application did not specify under which section or rule it was filed. The judgment-debtor filed an objection headed as an objection under Section 47, Civil P.C., and pleaded that the properties claimed had never been mortgaged nor sold and that the decree-holder purchaser was not entitled to possession over these properties. The Court after hearing the parties dismissed the application of the decree-holder holding that these properties had in fact been excluded from the mortgage deed, the suit, the decree and the auction sale. The decree-holder purchaser preferred this execution first appeal to this Court. A preliminary objection was taken to the hearing of this appeal that no appeal lay inasmuch as the dispute did not come under Section 47, Civil P.C., at all. The Bench before whom the case came up for hearing referred the following question to this Full Bench for answer:

Is a question between the auction-purchaser who is also the decree-holder in a mortgage suit and the judgment-debtor in that suit as to what passed under the auction sale and arising in an application by the auction-purchaser for possession of the property sold a question between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof

3. The question which arises in this case is certainly a difficult one, because there has undoubtedly been a conflict of opinion in the High Courts in India; but so far as this Court is concerned, the opinion has been consistently expressed which is, against the appellant. It is to be considered how far those decisions are affected by the two decisions of their Lordships of the Privy Council to which reference will be made hereafter.

4. Taking up the Full Bench cases only, the earliest case was that in Jagan Nath v. Baldeo (1883) 5 All 305 in which it was laid down by the five Judges of this Court, including the learned Chief Justice, that the confirmation of a sale under the Civil Procedure Code of 1859 was prima facie evidence of the title of the purchaser, and that it was sufficient to pass such title to him, of which a certificate, if afterwards obtained by him, would merely be evidence that the property had so passed. The Full Bench clearly laid down that the title becomes vested in the auction purchaser as a result of the confirmation of the sale independently of the question whether a certificate is subsequently taken out or not. In Sabhajit v. Sri Gopal (1895) 17 All 222 another Full Bench of five Judges including the learned Chief Justice, laid down that an auction-purchaser who simply stands in the position of auction purchaser and does not stand in the position of a plaintiff or a decree-holder, but rightly or wrongly had got into possession and now claims to be put back into possession, not as a decree-holder - for as such he had no right to possession - but as the auction-purchaser at a sale held under the decree, is only by pure accident the person who was the transferee of the decree of the plaintiff and so far as the auction, purchaser's rights as such are concerned, they must be regarded as if he and the transferee of the decree were two different persons. The Full Bench obviously took the view that the decree-holder who purchases at auction the property put up for sale occupies two capacities. In his capacity as ah auction-purchaser, he is really not a representative of a party to the suit, but in his capacity as a decree-holder ha is certainly a party to the suit. This was a case decided on the interpretation of Section 244 of the old Code, In the third Full Bench case in Gulzari Lal v. Madho Ram (1904) 26 All 447 the learned Chief Justice at page 455 remarked that there is no real distinction between a stranger purchaser and a decree holder purchaser at an auction as it seemed to the learned Chief Justice that

it was qua auction-purchaser that the defendant was sued, the suit being to set aside the sale to him, and as such auction-purchaser he was deemed' to be the representative of the judgment-debtor within the meaning of Section 244.

5. Blair, J. concurred in that view. Banerji, J. at pp. 462 and 463 held that every purchaser of the judgment-debtor's interest was bound by the decree and there was no distinction in principle between the case of a purchaser under a private sale and that of an auction-purchaser, provided that the decree in execution can be enforced against him, and then concluded that the auction-purchaser was a representative of the judgment-debtor, the mortgagor, within the meaning of Section 244, and a separate suit by him would not lie. In Bhagwati v. Banwari Lal (1909) 31 All 82 a similar question came up again for consideration before a larger Full Bench in which the opinion was divided. In the judgment of Banerji, J. which was the leading judgment of the majority of the learned Judges, reference was made to these earlier Full Bench cases. Dealing with the contention that the fact of the decree-holder being the auction-purchaser makes a difference and that when such a purchaser applies for delivery of possession, the question is one between the parties to the suit, the learned Judge was unable to accede to this contention. He observed:

The decree-holder as such is not entitled to possession, as the decree does not award possession. It is only in his capacity as auction-purchaser that he can apply for and obtain possession. In this respect his position is no better and should be no worse than that of any other purchaser.... Although the same person may be the decree-holder and the auction-purchaser, he fills two different capacities, and it is in the latter capacity only that he can obtain possession.

6. He accordingly held that the question arising under Sections 318 and 319 of the old Civil P.C. was not a question between the parties to the suit or their representatives and cannot be determined under Section 244, Civil P.C. With regard to the second question as to whether such a dispute related to the execution, discharge or satisfaction of the decree within the meaning of that section, the learned Judge held that in that respect also the position of the decree-holder purchaser was not different from that of any other purchaser, and that his title becomes vested by the confirmation of the sale under Sections 314 and 315, Civil P.C., and the validity of the sale or the completion of it does not depend on his obtaining possession. Tha learned Judge then referred to the Privy Council case in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683 which shall be considered separately, and remarked that this was a case in which the judgment, debtor had sued to set aside a sale on the ground of fraud, the defendant being the decree-holder, and that it was conceded by counsel that the question was one under Section 244, and that their Lordships held that it was so and that their Lordships did not lay down any general rule, but only expressed approbation of the fact that the Courts in India had not placed a narrow interpretation on the provisions of that section. Aikman, J. agreed with the Judgment of Banerji, J., and so did Griffin, J. This view has, of course, been followed by Division Benches of this Court subsequently. The cases in Munna Lal v. Collector of Shhjahanpur A.I.R. 1923 All 470, Imtiaz-un-nissa v. Chuttan Lal : AIR1925All236 , and Bulaqi Das v. Kesri : AIR1928All363 may be referred to, although it is not necessary in this case to express any opinion on the main points actually decided in those cases.

7. There is undoubtedly a preponderance of authority in favour of this view. A Full Bench of the Bombay High Court in Hargovind Fulchand v. Bhudar Raoji A.I.R. 1924 Bom. 429 has held that where a decree-holder who is himself the auction-purchaser at a Court sale held in execution of his decree seeks to get possession of the property so purchased, he does not do so in execution of his decree but by virtue of the title acquired as purchaser. His claim based on such title does not relate to the execution, discharge or satisfaction of the decree within the meaning of Section 47, Civil P.C., and therefore the provisions of that section do not prevent his filing a separate suit for possession. A Full Bench of the Patna High Court in Tribeni Prasad Singh v. Ramasray Prasad A.I.R. 1931 Pat 241 has held that a summary procedure for obtaining possession under Order 21, Rules 95 and 96 of the Code does not bar a suit by a purchaser to obtain possession of the property, the two remedies being concurrent. The Lahore High Court in Punjab National Bank, Ltd., Delhi v. Biri Mal A.I.R. 1930 Lah. 363 has held that there is no bar of Section 47 to a separate suit. The same opinion has been expressed by a Division Bench of the Rangoon High Court in J.A. Martin v. S.M. Hasim A.I.R. 1930 Rang 61. A Full Bench of the Oudh Chief Court in Gaya Baksh Singh v. Rajendra Bahadur Singh A.I.R. 1928 Oudh 199, although holding that a decree-holder purchaser is a party to the suit within the meaning of Section 47, Civil P.C., has held that the matter relating to the delivery of possession under Order 21, Rule 95 does not relate to an execution, discharge or satisfaction of the decree under Section 47.

8. On the other hand, a Full Bench of the Madras High Court in Veyindramuthu Pillai v. Maya Nadan A.I.R. 1920 Mad. 324 appears to have expressed a different opinion and a Full Bench of the Calcutta High Court in Kailash Chandra v. Gopal Chandra A.I.R. 1926 Cal. 798 has certainly done so. Strong reliance has been placed by the learned advocate for the appellant, as well as in the judgments of the Full Benches of the Madras and Calcutta High Courts referred to above, on two rulings of their Lordships of the Privy Council which turn on the interpretation of Section 244 of Act 14 of 1882. In Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683, a suit had been brought to set aside a judicial sale on the ground of the fraud of the judgment, creditor as well as the auction-purchaser, the plaintiff alleging that there had been collusion and fraud on the part of the other cosharers as well as the judgment, creditor and the auction, purchaser who had all been defendants in the suit. On the merits it was found that there were no particulars of the alleged fraud and collusion given. The charge was vague. Both the Courts in India held that the question ought to have been raised under Section 244 and could not be reagitated by a separate suit. Mr. Doyne, who appeared for the appellants, admitted before their Lordships that the question at issue was one relating to the execution, discharge, or satisfaction of the decree, but nevertheless argued that the provisions of Section 244 did not apply, because the question could not be properly described as one arising between the patties to the suit in which the decree was passed. Their Lordships expressed satisfaction that the Courts in India had not placed any narrow construction on the language of Section 244, and remarked:

When a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result, has never been held a bar to the application of the section.

9. Their Lordships therefore, although holding that the purchaser was no party to the suit (he could only be a representative of the judgment-debtor), held that if ha was interested in the result of the suit, then it should make no difference when the question was raised whether the sale should be set aside on the ground of collusion or fraud. It is noteworthy that the plaintiff was seeking to have the sale itself set aside by challenging the proceedings taken by the decree-holder in collusion with others. He could not have got the sale set aside without impugning the conduct of the decree-holder. The dispute therefore was principally between the judgment-debtor, who was the plaintiff, on the one hand and the decree-holder on the other. If a case of that kind were to arise under the new Code, it would obviously be covered by Order 21, Rule 90 which differs from the old Section 311 to this extent : that the words 'or fraud in publishing and conducting (the sale)' have been added therein now. It is thus obvious that if a judgment-debtor were trying to have the sale set aside on the ground of such fraud, he would be compelled to apply under Order 21, Rule 90 which would give him one more appeal, and his case would not fall under Section 47, Civil P.C. at all under which an order amounts to a decree with two appeals therefrom. The case in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683 cannot therefore be applicable to the present case which arises under the new Civil Procedure Code.

10. Similarly the case in Ganapathy Mudaliar v. Krishnamachariar A.I.R. 1917 P.C. 121 was also a case where the plaintiffs who had been minor defendants in the previous mortgage suit were claiming redemption of the mortgaged property by avoidance of the previous auction sale on two main grounds. One point raised was that the previous decree which had been passed against the minors had been satisfied and a new guardian appointed and the attachment which was issued had been issued under the earlier decree and not under the second decree. Their Lordships repelled this contention by holding that the proclamation of sale must be consequent on the decree with the knowledge of all the parties and without challenge and also pointed out that there could have been no mistake as to what was being sold. Another point taken was that the provisions of the Transfer of Property Act of 1882 had not been complied with as no date had been fixed by the Court for payment. Their Lordships remarked that whether the provisions of that Act were complied with or not

the property and all right, title and interest of those defendants in it were in fact sold to the vakil (plaintiff) in execution of a decree of a Court which had jurisdiction to entertain the suit in which the decree was made, and that decree was not appealed from.

11. Their Lordships accordingly held that any defect in the decree could not be made the subject of an attack in a separate suit inasmuch as the right, title and interest of the defendant had in fact been sold in execution of a decree of a Court which had jurisdiction to pass it. Their Lordships then quoted Section 244 of the Code of 1882 and referring to the earlier case in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683 remarked that it had been rightly held in India that Section 244 applied to a case in which the question raised concerned the auction purchaser at an auction sale as well as the parties to the suit, and observed that in this case the vakil was the auction-purchaser and was also a party to the suit.

12. The questions raised in the present suit could have been raised before the sale was confirmed, and, if so raised, would have been determined by the Court which was executing the decree.

13. In that case the plaintiff-vakil had been the decree-holder and was also the auction-purchaser. The suit was to have the sale itself set aside on the ground either that it had not taken place in execution of the right decree or that the decree itself was defective. It was not a case of delivery of possession after the sale had been confirmed. The vakil therefore was undoubtedly a party to the suit who was closely interested in the matter and against whom also the claim was directed. It was in this view that their Lordships held that he was both an auction purchaser and a party to the suit.... This observation cannot be taken to mean necessarily that the vakil was the auction purchaser and as such was a party to the suit. He would of course be a representative of the judgment-debtor to whose interest he succeeded. This case also therefore turned on the old Code and did not relate to any dispute about delivery of possession which arises after the confirmation of sale and cannot therefore be held to apply directly to the case before us.

14. As was remarked in the Full Bench cases of this Court, Section 47, Civil P.C. in order to apply requires that two conditions should be separately fulfilled : (1) All questions must arise between the parties to the suit in which the decree was passed or their representatives, and (2) must relate to the execution, discharge or satisfaction of the decree. There has been a considerable conflict of opinion in almost all the High Courts as regards the question whether an auction purchaser is a representative of a decree-holder or of the judgment-debtor or of both or of neither and unfortunately all such opinions have been expressed in one case or another. The view which has been taken in this Court has been that the auction purchaser is really a representative of the judgment-debtor and not of the decree holder. The references to the Full Benches of this Court have already been given. Obviously when a decree-holder puts up a certain property for sale in order to realize his money, he is putting up the right, title and interest of his judgment-debtor to sale and is not trying to put up to sale his own interest in the property. It would follow that the purchaser acquires what was put up for sale and not what was not so put up. He is therefore a purchaser of the right, title and interest of the judgment-debtor and must become a representative of the judgment-debtor succeeding to his estate. Ordinarily, therefore, the auction purchaser would not be a representative of the decree-holder, but in cases of mortgages or attachment, there are certain rights of priority possessed by the mortgagee or the attaching creditor which would certainly pass to the auction purchaser on the principle of subrogation, and not on the ground that such rights had actually been put up for sale and purchased by the auction purchaser. In Ram Sanehi Lal v. Janki Prasad : AIR1931All466 , it was remarked:

The auction purchaser would purchase the rights and interest of the defendant-mortgagor, although by virtue of the principle of subrogation he would also step into the shoes of the mortgagee and acquire his rights as well. But it cannot be suggested that the mortgagee's rights are put up for sale or are transferred by the defendant.

15. One may loosely say that the auction purchaser is also a representative of the decree-holder because he acquires the entire bundle of rights which had remained vested in the mortgagee and the mortgagor, and becomes full owner of the property. But really the property sold to the auction purchaser is free from all encumbrances, and he acquires the full rights of the mortgagor, particularly the right to obtain possession, as they stood at the date of the mortgage free from all encumbrances that might have come into existence subsequently, but subject to prior encumbrances unless otherwise directed.

16. But it is not sufficient to hold that the auction purchaser is a representative either of the judgment-debtor or of the decree-holder for the purpose of applying Section 47, Civil P.C. It is further necessary to see that the dispute is one arising between the parties or their representatives. The mere fact that the two persons who are litigating are either parties or representatives of the parties would not in itself be sufficient; for example, a judgment-debtor might have transferred his interest by a voluntary sale to a third party and then there may be a dispute between the judgment-debtor and this third party as to the extent of the property which has passed under it. The judgment-debtor is of course a party to the suit and the transferee is a representative of that party; but the dispute between them cannot be said to be a dispute arising between the, parties to the suit because it is a dispute I between one party and his own representative. The question therefore must in each case depend on the nature of the dispute which has arisen and it is only after having regard to the character of such dispute that the question can be answered whether it arises between the parties to the suit or not. It has been strongly contended by the learned advocate for the appellant that the fact that the decree-holder is the appellant cannot be ignored and therefore it should not be disputed that he is a party to the suit. His contention is that if the property had been purchased by a third party, then he may not be a party to the suit; but if the property happens to be purchased by the decree, holder himself, then he is always a party under Section 47, no matter what the nature of the dispute between him and the judgment-debtor may be. If this contention were sound, then the question would depend entirely on the status of the applicant at the date when the application was made. If the property had previously been purchased by a third party and has since been acquired by the decree-holder, then the dispute would be one under Section 47; but if after such acquisition the decree-holder were to transfer it to a forth party, then the dispute would not be one governed by that section. It is impossible to hold that the forum would depend on the status of the last transferee. The view expressed by the Full Bench cases of this Court has been that the decree-holder purchaser occupies two distinct capacities. If he is litigating in his capacity as the decree holder, then the dispute is between the decree-holder on the one hand and the judgment-debtor on the other. If however he is litigating in his capacity as an auction purchaser, then he is litigating as a representative of the judgment-debtor and not as a representative of the decree-holder. It is however not absolutely necessary to base the answer to the question referred to us on the ground that a dispute between the decree-holder-purchaser and the judgment, debtor is not a dispute between the parties to the suit within the meaning of Section 47, Civil P.C.

17. The further question to consider is whether the dispute at all relates to the execution, discharge or satisfaction of the decree. On that point again there is a, great preponderance of authority in favour of the view that it does not. A clear distinction has always been drawn between the two classes of suits; one suits for recovery of possession of immoveable property, and the other suits for recovery of money by sale of immoveable property. In the former case the suit is for delivery of possession itself, while in the latter case the decree is only for money realizable by sale of the mortgage property. In the latter case the mortgagee is not as of right entitled to possession of the property but he is only entitled to recover his money out of the property. In the former case the successful plaintiff is entitled to possession itself. Where a decree for possession of immoveable property has been passed and the decree-holder has obtained possession of part only of the property and not of the rest, he is certainly entitled to enforce his decree through the Court and recover possession of the remaining part by execution against the entire property. So long as he does not obtain possession of the entire property, his decree has not been fully executed and certainly not satisfied. On the other hand, where the decree is for payment of money only, and money is paid to the decree-holder, his decree is satisfied, although the auction purchaser may have some difficulty either in acquiring title or in acquiring possession. As a matter of fact there is no warranty of title at all and the doctrine of caveat emptor applies and the auction purchaser takes the risk of not getting the whole of the property that was put up for sale. Again, he may have difficulty as regards possession from a third party claiming an independent title, who may be in possession at the time and the auction purchaser may not succeed without having recourse to a separate suit. This distinction was maintained in the old Civil P.C. (Act 8 of 1859) and was again continued in Act 14 of 1882. Sections 263 and 264 related to delivery of possession where the suit was for delivery of possession of the immoveable property, while Sections 318 and 319 related to the delivery of property in cases where the suit had been for recovery of money and the money had been realised by the sale of the property. Then followed Sections 328 to 335 under the heading 'Resistance to Execution' which dealt with the case where there was resistance to delivery of possession, and Section 334 specifically stated that:

If the resistance or obstruction has been occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the claim shall be numbered and registered as a suit between the decree-holder as plaintiff and the claimant as defendant.

18. In the new Civil P.C. there is a similar distinction drawn in Order 21 which deals with the execution of decrees and orders except that the proceeding remains summary. Rules 35 and 36 refer to the delivery of possession of immoveable property and then from Rule 41 onwards there are provisions regarding attachment of property and sales as well as investigation of claims and objections. Rules 64 to 73 deal with sales generally and are followed by Rules dealing with sales of moveable property and sales of immoveable property respectively. Then there are provisions for the setting aside of sales on certain grounds, and ultimately we come to Rule 92 which provides that the Court shall, after all matters have been considered, make an order confirming the sale, and thereupon the sale shall become absolute. Section 65, Civil P.C., lays down that where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. It is, therefore, clear that as soon as the sale has been confirmed and therefore has become absolute, the title vests in the auction purchaser and he cannot be divested of that by any subsequent act. He becomes fully entitled to the property which vests in him, and his title cannot be destroyed by any summary proceedings that may take thereafter. There is provision for the grant of the certificate of sale under Rule 94 to the auction purchaser, and under Rule 95 the Court is bound on the application of the purchaser to order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and under Rule 96, delivery of property even in a case where it is in the occupancy of a tenant. So far the distinction between a decree for possession of moveable property and a decree for money realisable by sale of property has been maintained even by the new Code. From Rule 97 onwards we have provisions regarding resistance to delivery of possession. They are in the nature of summary proceedings to which recourse can be had if there is any resistance or obstruction. Under Rule 98 an order can be passed against a judgment-debtor or any person who is acting at his instigation; under Rule 99 an order can be passed against a person who is in possession and claiming title in good faith, and under Rule 101 an order can be passed against the auction purchaser and in, favour of such an outsider. Rule 103 then provides that

Any party not being a judgment debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.

19. It is contended on behalf of the appellant that the order passed by the Court below was in substance an order under one of these Rules and that no separate suit lies and that therefore the dispute must necessarily be one falling under Section 47, Civil P.C. The application that was made did not profess to have been made under Order 21, Rule 95, nor did the objection filed profess to have been made under Section 47. The dispute between the parties really was as regards title. The decree-holder auction purchaser was not trying to have the decree or late set aside. He was only claiming that the whole property including the kothi with garden and the kutchery had in fact been sold along with the zamindari. Similarly the judgment-debtor was not trying to challenge the decree or the sale or the sale certificate, but was maintaining that the sale did not include these two items of property. The question therefore was whether these properties had became vested in the auction purchaser by virtue of the sale, or whether they had remained vested in the judgment-debtor because these properties had not been sold at all. It was not a mere question of delivery of possession of property which had admittedly been sold and was not simply one of resistance of such delivery of possession. The dispute was one of title to immoveable property which prima facie could not be decided finally by the execution Court in the summary proceeding.

20. The scheme of the provisions seems to be that the provisions of Rules 97 to 103 come into operation when a property has been gold, a sale certificate has been granted and the Court has ordered delivery of possession to be made of such property. If in such a case there is resistance offered by the judgment-debtor or by any one at his instigation, the Court has to enquire into the matter and pass orders which it thinks just, and whatever order it passes is conclusive under Rule 103 against at least the judgment-debtor. Any other party affected thereby adversly is entitled to sue separately, but so far as the judgment, debtor is concerned, the matter is final. It is important to bear in mind that the language of Rule 103 is somewhat similar to that of Rule 63, which also lays down that subject to the result of any suit which any claimant or objector has preferred, the order shall be conclusive. The word 'conclusive' rather indicates that it is to be final and therefore neither open to be questioned in a separate suit nor open to an appeal. If any other interpretation were to be put on Rule 103, the result would be that although that Rule would provide that the order is conclusive, nevertheless he would have a right of appeal under Section 47 to a higher Court.

21. It is possible to argue that a proper interpretation of Rule 103 is that it does not refer to any order passed against the judgment-debtor at all and only refers to orders passed against other parties as against whom the order is conclusive, subject to the result of the suit. On the other hand, it rather seems that the Intention of the Legislature was that the judgment, debtor, if there is no question as regards the extent of the property that has passed at auction, should not be allowed to re-agitate the matter any further and must submit to the order of the Court passed against him under any of the three rules mentioned above. That there is a clear distinction drawn as regards the right to apply for delivery of possession in this summary way and the right to maintain a suit, is further clear from the provisions of the Indian Limitation Act. Article 180 allows three years to a purchaser of an immoveable property for delivery of possession from the date when the sale becomes absolute, whereas Article 138 provides a period of twelve years for a suit by a purchaser at a sale in execution of a decree when the judgment-debtor was in possession at the date of the sale from the date when the sale becomes absolute. It was certainly not intended that the adjudication of the right of the auction purchaser to obtain delivery would be conclusive when a period of 12 years is allowed to him to sue for recovery of possession.

22. The position becomes clearer when the case of a stranger purchaser is considered, for obviously Rules 97 to 103 apply in equal degree both to the stranger purchaser as well as to the decree-holder-purchaser. When the dispute is regarding the validity of the sale itself, then the stranger purchaser is merely interested in the result of the suit and the dispute between the judgment-debtor on the one hand and the decree-holder on the other is a dispute arising between the parties to the suit and is certainly one relating to the execution, discharge or satisfaction of the decree. If the case is one of fraud in publishing or conducting the sale, then the matter would be governed by Order 21, Rule 90. In all other cases it would be governed by Section 47 without any doubt. But where there is no doubt as regards the validity of the sale at all nor is there any dispute as regards title to any property or extent of the property sold but the dispute is confined to delivery of possession only, then the stranger purchaser cannot be a representative of the decree-holder at all; he is the representative merely of the judgment-debtor whose property he has purchased. The dispute then is between the stranger purchaser and the judgment-debtor, namely the representative of a party and that party himself. In such a case Section 47 cannot apply. The nature of the dispute remains the same whether by accident the decree-holder happens to be the purchaser or not, and therefore it has been held in this Court that the position remains the same and should not make any difference whether the property has been purchased at auction by the decree-holder or by the judgment-debtor. The dispute is of the same character and of the same nature and is really between the same parties, the decree-holder in his capacity as auction purchaser and the judgment-debtor in his capacity as the previous owner of the property. This dispute really is one which arises after the satisfaction of the decree, and therefore strictly speaking is not one relating to such satisfaction. When the property has been sold and the sale has been confirmed and the money has been realised or paid to the decree-holder, or where the decree-holder himself has purchased it he has set off the amount due to him under the decree against the purchase money, the decree must be deemed to have been satisfied in whole or in part as the case may be. That seems to be the stage at which the execution of the decree is over to that extent.

23. It now remains to consider the two Pull Bench cases of the Madras and Calcutta High Courts which seem to lay down the contrary proposition. The facts of the Madras case, Veyindramuthu Pillai v. Maya Nadan A.I.R. 1920 Mad. 324 are somewhat complicated; but it is quite dear from the judgment of Abdur Rahim, Ag C.J. that the question was referred to the Full Bench on the distinct assumption that the question that had arisen had related to execution, discharge or satisfaction of the decree within the meaning of Section 47, and that all that the Full Bench were asked was whether such a question arose between the parties to the suit in which the decree was passed or their representatives (p 116). If that be the case, then the view expressed therein does not really affect the point before us. Again, as is clear from the observations of Oldfield, J. at p. 127, the reference was confined to the question arising out of money decrees only and without regard to the special and more difficult considerations arising in connection with sales under mortgage decrees. If the question merely was that a purchaser in execution of a simple money decree is a representative of the judgment-debtor in that suit and is entitled to come in as a representative in another mortgage suit, then of course no difficulty whatever can arise. The answers given also appear to have been confined to such a case and were couched in the following terms:

The purchaser from a decree-holder-purchaser under a money decree is the representative of the judgment-debtor for the purpose of inquiry into question relating to the execution of a distinct decree affecting the same property (p 128).

24. The case therefore was of a different kind altogether and notwithstanding certain observations made in the judgments of the learned Judges, it cannot be accepted as a direct authority in support of the contention urged on behalf of the appellant. The Full Bench case of the Calcutta High Court in Kailash Chandra v. Gopal Chandra A.I.R. 1926 Cal. 798 does support the appellant's contention. But it is based mainly on the rulings of their Lordships of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683 and Ganapati Mudaliar v. Krishnamachariar A.I.R. 1917 P.C. 121 which have already been considered and distinguished. It is also based on the Full Bench case of the Madras High Court which has just been considered. Great stress has been laid by the learned Judges on a new aspect of the case that the decree cannot be deemed to have been fully executed and satisfied, unless and until the decree-holder has obtained actual possession of the property sold.

25. If this argument were sound, then the result would be that if immediately after the confirmation of the sale, house property sold were to be destroyed by an earthquake, the decree-holder would still be entitled to execute his decree and. realize his money from some other property on the ground that the decree had not been fully executed and satisfied because the property, purchased by him at the auction has not been delivered to him. It cannot be said that only the possession of the property is the fruit of the decree. Really in the case of a purchase by a stranger, the money paid by him and realized by the decree-holder represents the fruit of the decree. The position is in no way altered if the decree-holder himself is a purchaser. He merely instead of paying cash and taking it out again enters satisfaction of the decree in lieu of the amount due to him. With great respect, I am unable to agree with the view that the sale cannot be said to be complete without delivery of possession of the property sold. The sale is under Section 65, Civil P.C., complete as soon as it is confirmed irrespective of the question whether possession has or has not been delivered subsequently. The opinion of the Full Bench was not unanimous and at least one learned Judge, Cumming, J., did not agree with that view and concurred in the view which has been previously expressed in this High Court. Great stress was laid in that ruling on the provisions of Rule 95 onwards of the Civil Procedure Code; but the provisions of Section 65 do not appear to have been stressed before the Bench by the learned Counsel at the Bar, for there is no reference to it in any of the judgments of the learned Judges.

26. It is quite clear therefore that the view taken in this Court has been consistent throughout, that there is a very great preponderance of authority in favour of that view and that there is nothing in the rulings of their Lordships of the Privy Council in the two cases mentioned above which in any way destroy the effect of this long series of rulings. Both on principle and in view of the rulings of this Court, the answer to the question referred to us should be in the negative.

Thom, J.

27. I agree that for the reasons given by the learned Chief Justice, the question referred to us should be answered in the negative.

Allsop, J.

28. I also agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //