John Stanley C.J.
1. The facts of this case as found by the lower appellate Court are as follows:In execution of a mortgage decree obtained by one Musammat Mohini against one Shankar Lal, the interest of the latter in certain property was sold and purchased in the name of the defendant Bansidhar as a benamidar for the decree-holder Musammat Mohini. On the 27th of November 1897, the sale certificate was issued to Musammat Mohini and she by a tamliknama, dated the 20th of September 1900, transferred her interest to her daughter-in-law, the plaintiff Musammat Bhagwati. Bansidhar, the nominal purchaser, purported to resell the property to the defendant Ganga on the 27th of July 1897, and Ganga purported again to sell it to Musammat Mohini, but these last-mentioned sales may be left out of consideration as it is admitted by both Bansidhar and Ganga that Musammat Mohini was the real purchaser. The representatives of the mortgagor were in possession of the property at the date of the sale and they or their transferees have remained in such possession up to the present time. The suit out of which this appeal has arisen was instituted on the 1st of September 1904, that is about seven years after the date of the sale, for the recovery of possession of portion of the property, the subject matter of the sale. Both the lower Courts have held that the suit is barred by the provisions of Section 244 of the Code of Civil Procedure.
2. In consequence of the conflict of authority in this Court on the question involved in the case, this appeal has been laid before a Full Bench. Section 244 prescribes that all questions arising between the parties to a suit, or their representatives, relating to the execution, discharge or satisfaction of a decree, shall be determined by the Court executing the decree, and not by a separate suit. Two questions must be answered in the affirmative before we can hold that Section 244 applies to this case, namely, (1) is a mortgagee, who in a suit for sale upon his mortgage applies to the Court for, and obtains, leave to bid and buys the mortgaged property, amenable to the provisions of Section 244, and (2) is the plaintiff a representative of the decree-holder Musammat Mohini within the meaning of the expression 'representatives' as used in the section?
3. To take the first question, the argument in support of a negative answer to it was that as auction-purchaser the decree-holder Musammat Mohini occupied a different character from that of decree-holder, and that qua purchaser she was not a party to the suit and, therefore, no question touching the execution of the decree arose between the parties to the suit or their representatives. It is said that it was a mere accident that the decree-holder became the purchaser and that she must be held to occupy the position of a purchaser who had no connection whatever with the suit. It was further contended that the proceedings in the suit determined so soon as the sale was confirmed and that delivery of possession was outside and beyond the scope of the suit, and, therefore, it was not open to the plaintiff to apply for possession in the execution department and further that in any case, the plaintiff was entitled to maintain a separate suit for possession.
4. I fail to see how the purchase by a decree-holder mortgagee of the mortgaged property can be properly described as an accident. In no way, as it appears to me, can a purchase of the kind be regarded as a mere accident. In the first place, a mortgagee decree-holder is not permitted to bid at a sale held in execution of his own decree save with the leave of the Court. The obtaining of such leave is a deliberate act on his part. Then again the making of the highest bid is a deliberate act and in no true sense, therefore, can a purchase of the kind made by a mortgagee be regarded as accidental. The observation of Lord Watson in Mahabir Pershad Singh v. Macnaghten 16 C. 682 (P. C); L.R. 16 zI, A. 107, that leave to bid puts an end to the disability of the mortgagee and puts him in the same position as any independent purchaser' is relied on as establishing a dual character in a decree-holder purchaser according to which he may for one purpose lay aside his legal obligations as a party to the suit while he retains his rights and privileges in other respects. I do not think that Lord Watson intended to lay down any such proposition. What I understand by his language is simply this, that the rule which forbids a mortgagee decree-holder to purchase has no force if permission to bid be given to him by the Court and that when the grant of permission to bid has been given, such mortgagee is no longer under disability to purchase, but qua the right to purchase is on the same footing as strangers to the suit who may be bidders at the sale.
5. It was suggested during the argument that a mortgagee who purchases at a sale held in execution of his own decree, occupies a dual character such as that which is held by an executor or trustee and that as purchaser he is not also decree-holder and so cannot be regarded as a party to the suit so as to be bound by the provisions of Section 244; that, in other words, a question arising between him and the mortgagor judgment-debtor in regard to delivery of possession is not a question arising between the parties to the suit within the meaning of the section. The argument appears to be that when a sale to a decree-holder mortgagee has been confirmed the decree-holder entirely drops the character of decree-holder and assumes that of purchaser and that any question touching the delivery of possession of the purchased property is not a question between the decree-holder and the mortgagor in possession but is a question between the purchaser only, independently of the character of decree-holder, and the mortgagor. The recognition of such a dual personality in a decree-holder purchaser would be, I think, to introduce a strange and novel legal fiction into our jurisprudence. It has been said, and rightly said, that an executor, who is sued as such only, cannot in his personal capacity, be prejudiced by any decree which may be passed in the suit. In order that he may be personally bound he must be sued in his personal as well as in his representative capacity. There is, however, in my opinion no analogy between the two cases. An executor not merely claims title from a deceased person but he represents the deceased person. If he institute a suit, in respect of the estate of the deceased, he does so not presumably for his own benefit but for the benefit of the estate of the deceased. If he be sued as an executor only, he is sued as representing the deceased. On the contrary, in the case of a decree-holder he sues on his own behalf and for his own benefit. If he gets leave to bid and buys the mortgaged property, he does so on his own account and in his own interest alone. I am unable, therefore, to see how the character of the decree-holder can be split up into two distinct characters so as to enable him to override the provisions of Section 244. By becoming a purchaser he does not cease to be a party to the suit and as such to be bound by any order which may be passed therein. The intention of the Legislature in passing the enactment in question was, as it seems to me, to prevent any question which could be disposed of in execution becoming the cause of fresh litigation [see Viraraghava v. Venkata Charyar 5 M. 217 and Muttia v. Appasami 13 M. 504]
6. But we have further to see whether the obtaining of possession by a mortgagee decree-holder, who purchases at a sale in execution of his own decree, is a proceeding in execution within the meaning of Section 244. The mortgagors were at the time of the sale, and are still, in possession of the mortgaged property. Is a mortgagee decree-holder, who buys the mortgaged property, bound to apply to the Court for delivery of possession within the period prescribed for such step, that is three years, or is he entitled to remain quiescent for a period less than twelve years by a day and then institute a suit for possession? A sale of property is not complete until the vendor has delivered to the purchaser such possession as he is able to give. One of the liabilities of the seller is to give to the buyer on being so required such possession of the property as its nature admits (section 55 of the Transfer of Property Act, 1882). Delivery of possession was necessary in this case to render the sale ordered by the Court final and complete and was therefore, I think, a step-in-aid of execution. It is said that upon the confirmation of the sale there was nothing more to be done by the Court, but I am unable to accede to this proposition. The delivery of possession is undoubtedly to my mind a step-in-aid of execution. This was so held in the case of Moti Lal v. Makund Singh 19 A. 477, In that case Edge, C.J., and Blair., J., in their judgment observed: 'A proceeding in execution cannot be said to be completed (at least so far as the decree-holder is concerned) in a case of sale until he has obtained the proceeds and benefit of the sale held in execution of his decree. Consequently it appears to us that an application to be paid out of Court the proceeds of such sale must be considered as the taking of a step-in-aid of the execution of the decree.' And further on: The execution of his (the decree-holder's) decree cannot be said to be satisfied until in the one case he has received the purchase money paid into Court, and in the other case until he be put into possession of the property of his judgment-debtor which he has purchased and which represents money.' This ruling was followed in the case of Muttia v. Appasami 13 M. 504, which I have already cited: In that case a decree-holder purchaser applied under Section 318 of the Code of Civil Procedure for delivery of the property purchased by him which was in the occupancy of the judgment-debtor. The judgment-debtor set up an agreement between him and the applicant in bar of the application. Muttusami Ayyar, J., in the course of his judgment Observed: When the purchaser is also the decree-holder, the question, whether there was a just cause for the obstruction caused by the judgment-debtor, is also one relating to the execution of the decree between the parties to it within the meaning of Section 244.' In Sariatoolla Molla v. Raj Kumar Roy 27 C. 709, Maclean, C.J., and Banerji, J., hold that an application by a decree-holder to be put into possession of property which he had purchased under execution proceedings is an application in aid of execution within the meaning of Sub-section (4) of Article 179 of Schedule II to the Limitation Act. The ruling of this Court in the case of Moti Lal v. Makund Singh 19 A. 477 was approved of. In the case of Kattayat Pathumayi v. Raman Menon 20 M. 740, a decree-holder became purchaser of immoveable property which was sold in execution of his decree.
7. He applied under Section 318 of the Code of Civil Procedure for delivery of possession of the property purchased, but his application was rejected as barred by limitation, having been made more than three years after the confirmation of the sale. He then brought a suit to recover possession of the land from the judgment-debtor. It was held following several other decisions of the Madras and Calcutta High Courts that the proceedings taken by the purchaser to obtain possession of the property purchased related to the execution, discharge or satisfaction of the decree within the meaning of Section 244, and the suit was, therefore, dismissed. I do not think it necessary to cite further authorities for this proposition. It is supported by the rulings in the following cases:Har Din Singh v. Lachman Singh 25 A. 343, Kasinatha Ayyar v. Uthumansa Rowthan 25 M. 529, Ram Narain Sahoo v. Bandi Pershad 31 C. 737, Sandhu Taraganar v. Hussain Sahib 28 M. 87, Sheo Narain v. Nur Muhammad 30 A. 72.
8. According to my view when a Court has passed a decree for sale in a mortgage suit the proceedings are not at an end when the sale to the decree-holder who has obtained liberty to bid has been confirmed and a certificate of sale granted. In such a case if the mortgagor is in possession, it is the right of the purchaser to ask for and the duty of the Court to grant an order for delivery of possession to him. Until such possession has been given the decree cannot be said to have been executed or satisfied. In England any party to an action in which a sale has been directed who is in possession of the estate may be ordered by the Court to deliver up such possession to the purchaser and the Court will enforce such delivery of possession by a writ of possession: Order 51, Rule 1, Rules of the Supreme Court. Section 318 of the Code of Civil Procedure similarly provides that when property sold is in the occupation of the judgment-debtor and a certificate has been granted under Section 316, the Court shall, on application by the purchaser, order delivery to him of the purchased property. Hero the decree-holder made the purchase in order to satisfy her debt, and so long as the land remains in the possession of the mortgagors the debt to the extent of the price cannot be said to have been satisfied. The fallacy of the argument advanced on behalf of the appellants lies as it appears to me in the assumption that on the grant of the certificate of sale the decree was completely executed and satisfied. 'The decree was not, I think, satisfied so long as possession' was with held by the mortgagors from the decree-holder. I may point out that when a decree in a mortgage suit is not wholly satisfied by the proceeds of a sale, proceedings in the suit must be continued if the decree is to be wholly satisfied.
9. During the argument a suggestion was thrown out that Article 138 of Schedule II to the Limitation Act supported the appellant's contention. This article allows a period of 12 years to a purchaser of land in execution of a decree within which to bring a suit for possession of the purchased property when, as here, the judgment-debtor was in possession at the date of the sale. This article it was suggested, was inconsistent with the view expressed in the case of Sheo Narain v. Nur Muhammad 30 A. 72. It seems to me that it in no way supports the appellant's contention. A general provision of the kind cannot override the special provisions of Section 244. The article in question may be applicable to the case of a purchaser who was a stranger to the suit in which a decree for sale is passed, and who, not being a party to the suit, is not entitled to take proceedings under Section 244, but it can, in no way I think, be regarded as controlling the operations of Section 244. The conclusion at which I have arrived, therefore, is that if a mortgagee decree-holder obtain leave to bid at a sale held in execution of his own decree and becomes the purchaser, he must obtain possession from the mortgagor in possession in the execution department and not by an independent suit.
10. My brother Banerji rightly observed in the case of Gulzari Lal v. Madho Ram 26 A, 447, 463, F.B, that 'the trend of recent decisions, both of the Privy Council and of the Courts in this country, is in favour of placing on. Section 244 as wide an interpretation as is compatible with its provisions, so that questions which may be determined by the Court executing a decree should not be made the subject of a separate suit.' To hold contrary to the view which I have expressed would be not merely to narrow the interpretation to be placed on that section but also to overrule a decision of a Division Bench of this Court and of a Division Bench of the Calcutta High Court and several decisions of the Madras High Court, as well as the ruling in Moti Lal v. Makund Singh 19 A. 477 and the rulings which follow it. On the principle of stare decisis, even if there be any doubt as to the propriety of those decisions, I should hesitate to unsettle the law on the question decided by them.
12. This brings me to the remaining question in the appeal. The plaintiff in this case is not a decree-holder but a decree from the decree-holder. Is she a representative of the decree-holder within the meaning of Section 244? I have little or no doubt that she is. It has been held, and I think rightly, that the assignee of a decree-holder purchaser at an auction sale is a representative within the meaning of that expression in Section 244. Sandhu Taraganar v. Hussain Sahib 28 M. 87; also Dwar Buksh Sirkar v. Fatik Jali 26 C. 250. I see no reason for placing a donee of a decree-holder in a higher position than an assignee for value. The word representatives' appears to me to include a party who by assignment or gift succeeds to the rights of the decree-holder after decree.
13. I would, therefore, answer the second question in the affirmative and would, for the reasons which I have given, dismiss the appeal.
14. The facts found in the appeal are as follows:
15. Musammat Mohini as plaintiff obtained a decree for the sale of certain property. In execution of that decree she brought the property to sale and it was purchased by one Bansidhar on the 16th of November 1894. Bansidhar professed to sell the property under a sale-deed, dated the 30th of November 1894, to one Gangadhar. Gangadhar professed to sell it to Musammat Mohini the plaintiff. The real purchaser, however, was Musammat Mohini, the decree-holder, and she, on the 27th of July 1897, applied for and obtained the sale certificate. Musammat Mohini, on the 20th of September 1900, executed a tamliknama whereby she transferred this property to Musammat Bhagwati, the present plaintiff.
16. Musammat Bhagwati, on trying to obtain possession of the property conveyed to her, found herself opposed by Banwari Lal, son of Shankar Lal, who was judgment-debtor in the decree obtained by Musammat Mohini, in pursuance of which as already stated a portion of the house was brought to sale and purchased by Musammat Mohini. She accordingly instituted an ordinary suit for dispossession of Shankar Lal and other persons who, she alleged, were in collusion with him in refusing to deliver possession. All the defendants, except certain pro forma defendants, put forward as an answer to the plaintiff's claim, that she was a representative of the decree-holder and that as she did not obtain possession of the property purchased within three years, she was not entitled to file the suit, and that Section 244 of the Code of Civil Procedure operated as a bar. The Court of first instance holding that the suit was barred by Section 244, dismissed it. The lower appellate Court, also taking the same view, held that the suit was barred.
17. Section 244 lays down that questions arising 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, shall be determined by order of the Court executing a decree and not by separate suit.
18. It has been held by a Full Bench of this Court, Gulzari Lal v. Madho Ram 26 A. 447, 463. F.B, following a Full Bench judgment of the Calcutta High Court, Ishan Chunder Sirkar v. Beni Madhub Sirkar 24 C. 62, that the term representative as used in Section 244 of the Code of Civil Procedure, does not mean only the legal representative of a judgment-debtor, i.e. his heir, executor or administrator, but that it means his representative in interest, and includes a purchaser of his interest who, so far as such interest is concerned, is bound by the decree. In this case my brother Banerji held, and I think rightly, that every purchaser of the judgment-debtor's interest, who is bound by the decree, is a representative of the judgment-debtor within the meaning of the section. Whether he is a purchaser under a private sale from the judgment-debtor or a purchaser at a compulsory sale, held in execution of a decree obtained against the judgment-debtor. He could see no distinction in principle between the case of a purchaser at a private sale and that of an auction-purchaser provided that the decree in execution could be enforced against him.
19. By a similar process of reasoning it appears to me that a donee from a decree-holder, if he, should the necessity arise, can enforce the decree in the execution sale, should be held to fall within the category of representatives of a decree-holder for the purpose of Section 244 of the Code.
20. The object of that section, it appears to me, was to provide for the speedy determination of any question between the decree-holder and the judgment-debtor, should any still be left at such a late stage of the litigation between them. A decree-holder who has fought out his case, won his decree and carried it possibly into several Courts of appeal and who elects to buy the property of his judgment-debtor which he has put up to auction, ought to be in a position to know all that need be known about the property. He had ample means in the suit and under the procedure which regulate execution to find out all that need be known. It is to the interest of all that the litigation should be put to an end. Section 244 places the representative in the same position as the decree-holder, and I see no advantage in prolonging the strife by giving the decree-holder, who has become purchaser, a second capacity.
21. The learned Chief Justice has gone very fully into the remaining questions raised in the appeal and I do not see that I can, with advantage, add anything to which he has said upon these points beyond saying that I agree with what has been said upon them.
22. Agreeing with the learned Chief Justice, I would dismiss this appeal.
22. The question raised in this appeal is whether a suit by an auction purchaser or his representative against the judgment-debtor or his representative for possession of the property sold is barred by the provisions of Section 244 of the Code of Civil Procedure.
23. The facts are these: One Musammat Mohini obtained, on the 12th of March 1891, a decree for the sale of certain hypothecated property against Shankar Lal, the father of the first defendant. In execution of that decree she caused the property which consisted of a house and lands to be sold by auction on the 10th of November 1894 and purchased it herself in the name of one Bansidhar. The proceeds of the sale were sufficient to satisfy the decree in full, Bansidhar sold the property to Gangadhar, the son of Mohini and Gangadhar sold it to Mohini, who obtained a certificate of sale on the 27th of November 1897. Subsequently, on the 20th of September 1900, she made a gift of the property to her daughter-in-law, the plaintiff. As possession was withheld from the plaintiff she brought the present suit against the legal representatives of the judgment-debtor on the 1st of September 1904. The property claimed being a share of a house and land, other co-sharers in it were made defendants pro forma. The main defence to the suit was that it was barred by the provisions of Section 244 of the Code of Civil Procedure and that the plaintiff's remedy was an application for possession under Section 318 of the Code. This contention prevailed in the Court of first instance, which dismissed the suit. The decree of that Court having been affirmed by the lower appellate Court, the present appeal has been preferred by the plaintiff. It is contended on her behalf that Section 244 is no bar to the suit and that she had no remedy under that section.
24. There cannot be any doubt that the purchaser of immoveable property at an execution sale which has been confirmed is entitled to obtain possession of the property. If it is in the occupancy of the judgment-debtor or his tenants, the auction-purchaser may apply for delivery of possession under Section 318 or Section 319, as the case may be. Is a question which arises under either of those sections a question which may be determined under Section 244? If it is so, no separate suit will lie. The only clause of that section which can be applicable is Clause (c). In order that Clause (c) may apply, two conditions are essential: first, that the question arises between the parties to the suit in which the decree was passed or their representatives; and second, that it is a question relating to the execution, discharge or satisfaction of the decree. As regards the first condition it is manifest that the parties must be arrayed as decree-holder or his representative on the one side and judgment-debtor or his representative on the other. Any question arising between the decree-holder and his representative or between the judgment-debtor and his representative is clearly not a question with in the purview of Section 244. This has been held so repeatedly that I deem it unnecessary to cite authorities. I may refer, however, to the cases of Raynor v. The Mussoorie Bank Limited 7 A. 631; Magan Lal Mulji v. Doshi Mulji 25 B. 631, in which it was held that a dispute between the judgment-debtor and his own representative is not a question which may be determined under Section 244; and Gour Mohun v. Dino Nath 25 C. 49, in which the Calcutta High Court held that the section does not apply when a question arises as to the execution of a decree between two persons each of whom claims to be the representative of the decree-holder.
25. It was held by a Full Bench of this Court in Gulzari Lal v. Madho Ram 26 A. 447, 463. F.B. that an auction-purchaser of the interests of the judgment-debtor, who is bound by the decree, is his legal representative within the meaning of Section 244. Therefore, when a question arises between the judgment-debtor and the auction-purchaser of his interests it is a question between the judgment-debtor and his representative and is consequently not a question which may be determined under that section. The basis of the decision in Kalian Singh v. Thakurdas 3 A.L.J.R., 234; 26 A.W.N., 87, namely, that the auction-purchaser being the representative of the judgment-debtor, Section 244 applies cannot, in my humble judgment, be held to be sound. It is contended 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. I am unable to accede to this contention. 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. The fact that the decree-holder has purchased the property is, as observed in the Full Bench case of Sabhajit v. Sri Gopal 17 A, 222, a pure accident. 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. It was held by their Lordships of the Privy Council in Mahabir Pershad Singh v. Macnaghten 16 C. 682 (P. C); L.R. 16 I, A. 107 that a mortgagee decree-holder who purchases the mortgaged property at auction with the leave of the Court is in the same position as any independent purchaser, and Sections 318 and 319 of the Code of Civil Procedure make no distinction between a decree-holder auction-purchaser and any other auction-purchaser. I may also refer to Article 138 of the second schedule to the Limitation Act, under which a suit may be brought by an auction-purchaser for recovery of possession within the twelve years from the date of the auction sale. In that article no distinction is made between different classes of auction-purchasers. 1 fail to appreciate the reason for holding that if the decree-holder happens to purchase at an auction sale he has a shorter period of limitation for obtaining possession than any other purchaser. In my judgment all auction-purchasers, whether they are decree-holders or not, and whether they purchased under a mortgage decree or under a simple decree for money, are in the same position as regards recovery of possession of the property purchased by them and that it is only in their capacity as auction-purchasers that they can obtain possession. The question, therefore, which arises under Section 318 or 319 of the Code of Civil Procedure is not a question between the parties to the suit or their representatives and cannot be determined under Section 244. In the present case the plaintiff cannot at all be regarded as the decree-holder. The decree itself was never assigned to her. It was the property sold by auction which was transferred to her by gift by the auction-purchaser. Under that transfer she acquired no interest in the decree itself and in no sense can it be said that she is the holder of the decree or the representative in interest of the decree-holder qua the decree. Even therefore, if it be assumed that a distinction existed between the case of a decree-holder purchaser and any other purchaser (though in my judgment no such distinction exists) that distinction cannot he held to apply in the present suit.
26. I am further of opinion that a question between the auction-purchaser or his representative and the judgment-debtor or his representative relating to delivery of possession is not a question 'relating to the execution, discharge or satisfaction of the decree' within the meaning of Section 244, Clause (c). Upon the judgment-debtor's property being sold and the amount due under the decree being realised the decree is fully executed, discharged and satisfied and no question relating to the execution, discharge or satisfaction of the decree remains to be determined. Whether or not the auction purchaser obtains possession of the property sold is wholly immaterial for the purposes of the decree and does not in any way affect it. If the decree-holder purchases the property but does not obtain possession, that circumstance would not entitle him to take out execution of the decree which has already been satisfied. So long as the sale subsists he cannot claim a refund of the purchase money or ask for execution of the decree to the extent of the amount of the purchase money. It is only when an auction sale has been set aside under Sections 310A, 312 or 313, that the purchaser may, under Section 315, obtain a refund, but he is not entitled to a refund if he fails to obtain possession of the property sold. In this respect also the position of the decree-holder purchaser is not different from that of any other purchaser. It is said that an auction sale is not complete until possession has been delivered to the auction-purchaser. I see no warrant in the Code of Civil Procedure for such a view. Under Section 314 a sale becomes absolute as soon as it is confirmed, and under Section 316 the property vests in the purchaser from the date of confirmation of sale. The purchaser may, no doubt, obtain delivery of possession by an application under Section 318 or 319, but the validity of the sale or the completion of it does not depend on his obtaining possession. I am also unable to hold that if the decree-holder happens to be the auction-purchaser the property purchased by him may be regarded as the proceeds of the sale or the fruits of the decree. The proceeds of the sale consist of the purchase money for which the property was sold and it is the amount of this purchase money which the decree-holder obtains as the fruits of the decree. If he purchases the property he does not get it as an equivalent of the amount of his decree but he has to pay the purchase money, and he may do so, either in cash or by setting it off against the amount of his decree. In the present case the property was sold for Rs. 400, whereas the amount of the decree was Rs. 87 only. The purchaser had to pay the purchase money in cash and she got the property, not in lieu of the amount of her decree but for a much larger sum. The purchase of the property can, therefore, in no sense be regarded as acquisition of the fruits of the decree and failure to obtain possession of the property cannot affect the decree itself. Even if the decree be one for sale upon a mortgage, and a sale takes place in pursuance of it, delivery of possession to the purchaser is not made under the decree. Section 88 of the Transfer of Property Act, which lays down what a decree for sale should provide, does not direct that possession should be delivered to the purchaser. So far, therefore, as the purchaser is concerned he does not obtain possession by virtue of the decree and the question of delivery of possession to him is not one relating to the execution, discharge or satisfaction of the decree. That the Legislature intended that a purchaser at auction sale may obtain possession by means of a suit is manifest from Article 138 of Schedule II of the Limitation Act, to which I have already referred. That article makes no distinction between the case of a decree-holder purchaser and that of any other purchaser. I can find no legitimate reason for holding that if a decree-holder happens to purchase the judgment-debtor's property he should be in a worse position than any other purchaser. I am, therefore, of opinion that a decree-holder auction-purchaser, like any other auction-purchaser, is entitled to claim possession not only by an application under Section 318 or Section 319, but also by suit, that he has alternative remedies, one of the remedies being a summary application for possession, and that Section 244 is not a bar to such a suit and does not apply to such an application.
27.The course of rulings in this Court has, until recently, been to the effect that there is no appeal from an order under Section 318 and that such an order is not one under Section 244. In Narain Singh v. Pargash 6 A.W.N. 45, Dhunda v. Durga 13 A.W.N. 122, Ghulam Shabbir v. Dwarka Prasad 18 A. 36 and Baboo Luchmee Narain v. Baboo Bhairow Pershad 1 Agra II.C.R. 5. Mis. Ap., it was held that no appeal lies from an order for delivery of possession to an auction purchaser. The same view was taken by the Calcutta High Court in Bhimal Das v. Must. Ganesha Koer I.C.W.N. 658 and Mahomed Mosraf v. Habil Mia 6 C.L.J. 749. The contrary opinion was expressed in this Court in Kalian Singh v. Thakur Das 3 A.L.J.R., 234; 26 A.W.N., 87., to which I have already referred. That was a very unfortunate case. The plaintiff as purchaser at an auction sale held in execution of a mortgage decree applied for delivery of possession under Section 318. The Court of first instance rejected his application as time-barred. On appeal the District Judge held that the application was not beyond time. From his decision an appeal was preferred to the High Court, being First Appeal from Order No. 50 of 1898. The High Court held on 6th August 1898 that no appeal lay to the District Judge and restored the order of the Court of first instance. Thereupon the auction-purchaser brought a suit for possession and obtained a decree in the Courts below. The High Court on appeal held that the suit was not maintainable and was barred by the provisions of Section 244 of the Code of Civil Procedure. The reason for this decision was, as I have pointed out above, that according to the decision of the Full Bench in Gulzari Lal v. Madho Ram 26 A. 447, 463. F.B., the auction-purchaser was the representative of the judgment-debtor within the meaning of Section 244 and that the aforesaid section was, therefore applicable. The learned Judges, as it appears to me, omitted to give effect to the consideration that the auction-purchaser being the representative of the judgment-debtor, the question was one between the judgment-debtor and his representative and did not, therefore, come within the purview of Section 244. With great deference, therefore, I am unable to follow this ruling. The same view was held by the same learned Judges in Sheo Narain v. Nur Muhammad 30 A. 72, reversing the decision of my brother Aikman in that case, reported in I.L.R., 29 All, 466. The case of Kalian Singh v. Thakur Das 3 A.L.J.R., 234; 26 A.W.N., 87 was referred to and followed and reference was also made to two recent decisions of the High Courts of Calcutta and Madras and to the decision of their Lordships of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683; L.R. 19 I.A. 166. The case in the Calcutta High Court which was referred to is that of Madhu Sudan Das v. Gobinda Pria Chowdhurani 27 C. 34., but that case is irreconcilable with the decision of the same Court in the earlier cases of Seru Mohun Bania v. Bhagobandin Pandey 9 C. 602 and Kishori Mohun Roy Chowdhry v. Chunder Nath Pal 14 C. 644. and was not followed in the recent case of Mahomed Mosraf v. Habil Mia 6 C.L.J. 749. In the case last mentioned the purchaser was the decree-holder and the assignee from him applied for possession under Section 318. It was held by.Brett and Mookerjee, JJ., that Section 244 did not apply and no appeal lay. The case of Madhu Sudan Das v. Gobind Pria Chaudhurani 27 C. 34. was referred to but was not followed. I may observe that the learned Judges who decided the case of Madhu Sudan Das v. Gobind Pria Chaudhurani 27 C. 34. themselves felt some difficulty in holding that the question related to the execution, discharge or satisfaction of the decree and they did not refer to the earlier rulings on the point. In Kattayat Pathumayi v. Raman Menon 20 M. 740., the other' case referred to the learned Judges (Benson and Bhashvam Ayyangar, JJ.,) doubted the correctness of the view they were adopting but felt themselves bound by previous rulings on the point. The same was the case with Sandhu v. Hussain 28 M. 87. In that case the learned Chief Justice (Sir Arnold White) expressed the opinion that the question could not be regarded as one relating to the execution of the decree. These cases, therefore, so far from supporting the contention of the respondents, are against them. As for the decision of the Privy Council in Prosuno Kumar Sanyal v. Kali Das Sanyal 19 C. 683; L.R. 19 I.A. 166., that was a case in which the judgment-debtor sued to set aside a sale on the ground of fraud, the defendant being the decree-holder. It was conceded by counsel that the question was one under Section 244 and their Lordships held that it was so. They do not lay down any general rule but only express approbation of the fact that the Courts in India have not placed a narrow interpretation on the provisions of Section 244. That ruling does not, in my judgment, justify the application of those provisions to cases which do not fall within their scope and purview. The only other cases to which the learned Counsel for the respondent has referred are Kesri Narain v. Abul Hasan 26 A. 365., in which my brother Knox expressed the opinion that an application under Section 318 is an application for execution and Moti Lal v. Makund Singh 19 A. 477., in which an application for delivery of possession was held to be an application to take a step-in-aid of execution. For the reasons, I have already stated, I am unable to agree with those decisions.
28. In my judgment the plaintiff's suit is not barred by the provisions of Section 244 of the Code of Civil Procedure. I would, therefore, allow the appeal and setting aside the decree of the lower appellate Court, remand the case to that Court for trial of the other questions which arise in the case.
29. The question for decision by this Full Bench is whether a decree-holder who has purchased property at a sale in execution of a decree for money or the assignee of such a decree-holder can maintain a suit against the judgment-debtor or his representative for possession of the property, or whether such a suit is barred by the provisions of Section 244 of the Code of Civil Procedure.
30. There is no doubt that a purchaser of property sold in execution of a decree for money, whether he be the decree-holder himself or an outsider, can, after he has got a certificate under Section 316 of the Code, apply to the Court under Section 318 to be put in possession. If for some reason he fails to get possession in this way within three years from the date or grant of the certificate, there is equally little doubt that a purchaser, other than the decree-holder, is allowed a period of twelve years under Article 137 or 138 of the Limitation Act within which he may bring a regular suit for possession of the property he has bought. I would remark in the first place that there is nothing in the language of these articles which would render them inapplicable to decree-holders who have purchased. If it had been the intention of the Legislature that these articles should have no application to suits by decree-holders, one would have expected the articles to run:
'Suit by a purchaser, other than a decree-holder.'
31. I am unable to see any reason why a decree-holder who happens to have offered a larger amount than any other bidder at a sale in execution of his decree should have only three years within which to enforce his right to the possession of the property he has bought, whilst an outside purchaser has twelve.
32. It must be remembered that it is not in his capacity of decree-holder that a decree-holder purchases property in execution of his decree for money. To use the language of the judgment of five Judges of this Court in the Full Bench case, Sabhajit v. Srigopal 17 A. 222., it is 'a pure accident' that a person who is the holder of the decree is also the auction-purchaser. In the case of both a decree-holder auction-purchaser, and an outside auction-purchaser, the title to the property vests as soon as the sale certificate is issued and not before. The ordinary rule is that a person in whom the title to immoveable property has vested can bring a suit for possession thereof at any time within twelve years from the date on which he acquired title. Why should a decree-holder, who happens to have been the highest bidder at a sale, have a shorter period? An independent purchaser would have twelve years within which to enforce his title to the property and to use the language of Lord Watson in the Privy Council judgment in Mahabir Pershad Singh v. Macnaghten 16 C. 682 (P. C); L.R. 16 I, A. 107.: 'Leave to bid puts an end to the disability of the mortgagee, and puts him in the same position as any independent purchaser.'
33. In the case Rajah Enayet Hossein v. Sumeer Chand (1869) 12 M. 1. A. 366; 11 W.R. 29 (P.C.); 2 B.L.R. 75 (P.C.) the plaintiff Sumeer Chand had bought from a decree-holder property which the latter had purchased at a sale in execution of his own decree. In the judgment in that case their Lordships say that there is no foundation in principle or authority for the distinction which it was attempted to set up between a person standing in the position of a claimant under an execution sale, and a claimant under any other conveyance or assignment. True the distinction which it was attempted to set up in that case was one in favour of the execution purchaser. Such a purchaser is in no better position than one who takes under any other conveyance. But is there any reason why he should be in a worse? So far I have attempted to show that there is no a priori reason why a decree-holder who buys at a sale in execution of his own decree should not have the same right as an independent purchaser to bring a suit to obtain possession. But it is said that Section 244 of the Code of Civil Procedure bars any suit by a decree-holder auction-purchaser. If it is clear that the section does bar such a suit, then, however difficult it may be to see why it should, this appeal must fail.
34. I have had the advantage of reading the judgment of my brother Banerji in this case and I agree so entirely with the reasons he gives for holding that Section 244 does not bar such a suit, that I feel it unnecessary to add much.
35. Great stress has been laid by learned Judges who have taken a different view on an observation of their Lordships of the Privy Council in Mahabir Pershad Singh v. Macnaghten 16 C. 682 (P. C); L.R. 16 I, A. 107., where they say 'Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244, and that 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.'
36. This observation must be read with reference to the facts of the case which was before their Lordships, and could never in my opinion have been intended to have the effect of taking away a right of suit, which has never been doubted, at all events in this Court, until recently. It will be seen too, that their Lordships recognise that to bring the question within the purview of Section 244 it must, first, be between the parties to the suit or their representatives, and next, it must relate to the execution, discharge or satisfaction of the decree. I fully agree with the reasoning on which my brother Banerji bases the conclusion at which he has arrived, namely, that a suit by a decree-holder purchaser or his assignee fulfills neither of these requirements.
37. Although the case of Mudhu Sudan Das v. Gobind Pria Chaudhurani 27 C. 34., is against the appellant, the learned Judges who decided it admit that the matter is not so clear and there are at least three decisions of that Court which are in favour of the appellant. I refer to the cases of Bujha Roy v. Ram Kumar Pershad 26 C. 529.; Bimal Das v. Ganesha Koer I.C.W.N. 658.; Mahomed Mosraf v. Habib Mia 6 C.L.J. 749. There are decisions of the Madras High Court which are against the appellant. But even in that Court, doubt has been thrown on the propriety of those decisions. In Kattayat Pathumayi v. Raman Menon 20 M. 740., the learned Judges say: If the question was not already settled by more decisions than one of this Court, and of the Calcutta High Court, we 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, Civil Procedure Code, when such, proceedings could not possibly affect the execution, discharge or satisfaction of the decree.'
38. Again in Sandhu Taraganar v. Russain Sahib 28 M. 87., Sir Arnold White, C.J., observed: 'If the matter were res Integra, I should be disposed to hold that the question is not one relating to the execution, discharge or satisfaction of the decree.'
39. There are cases in this and other Courts in which it has been held that an application by a decree-holder purchaser to be put in possession of the property he has bought is an application to the Court to take a step-in-aid of execution within the meaning of Article 179 of the Second Schedule of the Limitation Act. The learned Counsel for the respondents relied on those cases which do, to some extent, support the view taken by the lower Courts in this case. But I agree with my brother Banerji in doubting the propriety of the view taken in these cases.
40. An application by an independent purchaser to be put in possession is certainly not an application to take a step-in-aid of execution and 1 do not see why such an application by a decree-holder who has purchased should be deemed to be a step-in-aid of execution. He has got the fruits of his decree when the title to the property vested in him.
41. With all deference to the learned Judges who have expressed a different opinion, I agree entirely with the judgment of my brother Banerji and with the order which he proposes to make in this case.
42. In a decree for sale on a mortgage, there is no provision for delivery of possession to the auction purchaser. The Court executing the decree cannot go beyond its terms unless it is expressly empowered by law to do so. Such a power is conferred on the Court by the provisions of Sections 318 and 319 of the Code of Civil Procedure. On the facts found in the present case the decree-holder auction-purchaser might have applied to be placed in possession, under the provisions of Section 318 and Section 319 of the Code of Civil Procedure. If he did not so apply or if his application was unsuccessful, he could, in my opinion, fall back upon his title and sue for possession. That title he derived not from the decree which, in so far as it was a decree for sale, had expended its force but from his purchase. Under Article 138 of schedule II of the Indian Limitation Act he could bring his suit within twelve years from the date of the sale. Neither in the Code of Civil Procedure nor in the Indian Limitation Act is there any distinction drawn between a decree-holder auction-purchaser and a stranger auction-purchaser.
43. I would, therefore, concur in the order proposed by my brothers Banerji and Aikman.
44. In view of the decisions of the majority of the Full Bench the order of the Court is that the appeal be allowed and the decree of the lower appellate Court be set aside and inasmuch as that Court decided the case upon a preliminary point and the Court has overruled it upon that point, we direct that the appeal be remanded to the lower appellate Court under the provisions of Section 562 of the Code of Civil Procedure, with directions that it be reinstated in the file of pending appeals in its original number and be disposed of on the merits, regard being had to the order of the Court in this case. The costs of this appeal will abide the event, including fees on the higher scale.