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Ramratan Bhondoo Vs. Chauwamal Lukkimal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 89 of 1956
Judge
Reported inAIR1959MP348
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Gwalior State Code of Civil Procedure (CPC) - Sections 234
AppellantRamratan Bhondoo
RespondentChauwamal Lukkimal
Appellant AdvocateAbdul Hafiz and ;A.H. Siddiqui, Advs.
Respondent AdvocateRam Prakash Saxena, Adv.
DispositionAppeal allowed
Cases ReferredTribeni Prasad v. Ramasray Prasad
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....took a contrary view, relying on a full bench! decision of the patna high court and another full bench decision of the oudh chief court. but in view of the division bench decision in mst. semabi i cannot follow that decision. 5. i am also aware of a decision of the allahabad high court reported in kedar nath v. arun chandra sinha, ilr 1937 all 921: (air 1937 all 742). that judgment of the full bench was delivered by sulaiman, c. j., taking a contrary view. that decision was followed in abdul gani v. lal-chand ilr (1941); 22 lah 91 : (air 1940 lah 230), firm ram singh gopal singh v. firm abdullah habibullah, ilr (1945) lah 252 : (air 1944 lah 402) (fb) and in another full bench of the allahabad high court in suraj dei v. gulab dei (s) air 1955 all 49. but for the same reason that.....
Judgment:

Shiv Dayal, J.

1. This second appeal arises out of a suit for possession of a house which the respondent had purchased in a court sale, in execution of his own decree against the appellant. The material facts are that on May 2, 1940 the sale was made absolute in favour of the decree-holder. On 19-4-1941 the sale certificate was granted to the decree-holder purchaser. On 10-4-1942 he applied to the executing court for delivery of possession of that house to him but eventually the execution was dismissed for default. Then the decree-holder purchaser brought this suit for possession. The suit was resisted by the judgment-debtor on the ground that the suit was barred. This objection did not find favour either with the trial Judge or with the first appellate Court.

2. In this second appeal the only question to be decided is whether the suit is barred by Section 234 of the Gwalior Zabta Diwani (Gwalior State Code of Civil Procedure) which was then in force. Section 234 of Gwalior Zabta Diwanj corresponds to Section 47 of the Indian Code of Civil Procedure. There is, however, this difference that the Gwalior Code provides that a dispute with the auction purchaser relating to the execution, discharge or satisfaction of the decree must be determined by the Court executing it while under Section 47 of the Indian Code of Civil Procedure there is a conflict of decisions on that point. In the present case, therefore, it is not disputed that Section 234 is applicable provided it is found that the dispute in the suit is one which could be determined by the exe-cuting court as a question relating to execution, discharge or satisfaction of the decree.

3. The question whether the dispute between the auction purchaser and the judgment-debtor relating to the delivery of possession is a matter relating to execution, discharge or satisfaction, has been the subject or great controversy and reported decisions on the point are not uniform. But where a decrees-holder is himself an execution purchaser the law is settled, so far as this court is concerned. In the case of Mst. Semabi v. Ganpatrao Yadorao ILR 1938 Nag 583 : (AIR 1938 Nag 212), a Division Bench has held that a dispute relating to de-livery of possession between the decree-holder purchaser and the judgment-debtor resisting possession is one relating to execution, discharge and satisfaction of the decree within the meaning of Section 47 of the Civil Procedure Code. To the same effect is the decision reported in Narayanrao Amritrao v. Chunnilal Sitaram ILR 1952 Nag 150 : (AIR 1953Nag 236). (See also Lachusa Mottlal v. Meharali Rahimall AIR 1917 Nag 24 (2)). The ratio decidend of the above authorities equally applies to Section 234 of the Zabta Diwani because it is in no way different from Section 47 of the Coda on the question in hand,

4. There is, however, one decision Chhotelal v. Sarwan, AIR 1932 Nag 140 in which MacNair J. C. took a contrary view, relying on a Full Bench! decision of the Patna High Court and another Full Bench decision of the Oudh Chief Court. But in view of the Division Bench decision in Mst. Semabi I cannot follow that decision.

5. I am also aware of a decision of the Allahabad High Court reported in Kedar Nath v. Arun Chandra Sinha, ILR 1937 All 921: (AIR 1937 All 742). That judgment of the Full Bench was delivered by Sulaiman, C. J., taking a contrary view. That decision was followed in Abdul Gani v. Lal-chand ILR (1941); 22 Lah 91 : (AIR 1940 Lah 230), Firm Ram Singh Gopal Singh v. Firm Abdullah Habibullah, ILR (1945) Lah 252 : (AIR 1944 Lah 402) (FB) and in another Full Bench of the Allahabad High Court in Suraj Dei v. Gulab Dei (S) AIR 1955 All 49. But for the same reason that decision also cannot be followed in this court.

6. I must also notice a Full Bench decision of the Patna High Court in Tribeni Prasad v. Ramasray Prasad, AIR 1931 Pat 241 where die question has been elaborately discussed & it was held that in such a case execution terminates with the sale of the property and as such he cannot raise any question relating to the execution, discharge or satisfaction of the decree within the purview of Section 47 of the Code in the wide sense of the term 'relating to' as meaning 'connected with'. Hence a simple suit for possession by decree-holder purchaser will not be barred by Section 47 of the Code. But in view of the binding precedent ILR 1938 Nag 583 : (AIR 1938 Nag 212) I cannot apply my mind to the question independently.

7. The result of this discussion is that the decree-holder purchaser could not bring this suit as the same was barred by Section 234 of Gwalior Zabta Diwani.

8. This appeal is, therefore, allowed the judgments of both the courts below are set aside andthe respondent's suit is dismissed. In the circumstances of the case the parties shall bear their owncosts throughout. I certify that this is a fit casefor Letters Patent appeal under Clause 10.


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