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Sadhucharan Patri Vs. Sudarshan Patri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 140 of 1963
Judge
Reported inAIR1965Ori2
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47; Limitation Act, 1908 - Schedule - Article 138
AppellantSadhucharan Patri
RespondentSudarshan Patri and ors.
Appellant AdvocateD. Mohanty and ;P.C. Mohanty, Advs.
Respondent AdvocateP. Kar, Adv.
DispositionAppeal dismissed
Cases ReferredWahidulla Khan v. Ramkrishna. None of
Excerpt:
.....to the execution proceedings as would appear from the decision in harnath rai v. naliniranjan mukherjee, air 1950 cal 493. thus it was no more open to the appellant to contend that the present execution in which the suit property was put to safe, was barred by the law of limitation......in good faith paid the entire decretal dues to the plaintiff in order to handover the same to the decree-holder jadumani patri and to obtain the full satisfaction receipt. but the plaintiff instead of paying the same to jadumani purchased the suit property with the said sum and gave out to the, defendant that he in fact paid the money to the decree holder. the defendant was all along under the impression that the decretal dues had been satisfied and came to know of the fraud of the plaintiff only when the present suit was filed. his further plea was that the execution case in which the suit property was put to sale was fourth in point of time and was barred by limitation since the third execution case was itself barred having been filed on 19-9-39 after the expiry of three years from.....
Judgment:

R.K. Das, J.

1. This is a defendant's appeal against the confirming decision of the Additional Subordinate Judge of Cuttack, arising out of a suit for declaration of title and recovery of possession.

2. The suit land originally belonged to the defendant. One Jadumani Patri obtained a decree against the defendant in money suit No. 126 of 1930 and in execution of the said decree put the suit land to auction, and the plaintiff purchased it in the Court sale for a sum of Rs. 25/- on 16-9-42 and the said sale was confirmed on 16-2-43 and the plaintiff obtained the requisite sale-certificate from the Court. The plaintiffs case is that when he want-ed to take delivery of possession, the defendant told him not to put him to further unnecessary expenses and he would deliver possession of the suit-land amicably without intervention of the Court. In the long run, however, the defendant did not deliver possession of the suit land on various pretexts and accordingly the plaintiff filed the present suit on 13-9-54 for the reliefs stated above.

3. It is the case of the defendant that both he and the plaintiff are the Sevaks of Baladev Jiew of Kendrapara and are on friendly terms and the defendant in good faith paid the entire decretal dues to the plaintiff in order to handover the same to the decree-holder Jadumani Patri and to obtain the full satisfaction receipt. But the plaintiff instead of paying the same to Jadumani purchased the suit property with the said sum and gave out to the, defendant that he in fact paid the money to the decree holder. The defendant was all along under the impression that the decretal dues had been satisfied and came to know of the fraud of the plaintiff only when the present suit was filed. His further plea was that the execution case in which the suit property was put to sale was fourth In point of time and was barred by limitation since the third Execution case was itself barred having been filed on 19-9-39 after the expiry of three years from 4-7-36 the date of disposal of the Second Ex. Case. It was contended that the plaintiff-auction-purchaser being a representative of the decree-holder the appropriate remedy for him was to file an application under Section 47 of the Civil Procedure Code and the present suit was accordingly not maintainable.

4. The Court below rejected all the contentions raised on behalf of the defendant. Hence this appeal by the defendant.

5. Both the courts below found as a fact that the defendant did not in fact pay the decretal dues to the decree-holder through the plaintiff as alleged by him, and this concurrent finding of fact was not rightly challenged before me by Mr. Mohanty, learned counsel for the appellant. He, however, raised the following propositions of law. (i) That the further-Execution case in which the suit property was put to sale was itself barred by limitation. For this purpose he relied upon Ex. A an information-sheet said to nave wen given by the concerned clerk to show that the 3rd Execution Case was barred by limitation, the same having been filed after three years from the date of disposal of the second Execution case. Admittedly the appellant had not raised any objection on the question of limitation when the proceeding was continuing in the Executing Court. The learned appellate Court therefore rightly rejected this plea of the defendant. It cannot be disputed that if a point which ought to have been raised is not raised at the appropriate stage, then it will be deemed to have been decided against the person who was entitled to raise it. It is well settled that the principle of res judicata also applies to the Execution Proceedings as would appear from the decision in Harnath Rai v. Hirdai Narainj AIR 1953 Pat 242, Smt Akshoykumari Debi v. Naliniranjan Mukherjee, AIR 1950 Cal 493. Thus it was no more open to the appellant to contend that the present execution in which the suit property was put to safe, was barred by the law of limitation.

6. It was next contended by Mr. Mohanty that in view of the explanation added to Section 47 of the C. P. C., the plaintiff-auction purchaser should have proceeded with an application under the said section in the execution case itself, and a separate suit is not maintainable. To appreciate this argument, it is necessary to state the provisions of Section 47, C. P. C. at this stage:

'Section 47(1) All 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, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.

(3) .....

EXPLANATION : For the purposes of this Section a plaintiff whose suit has been dismissed and a Defendant against whom a suit has been dismissed, are parties to the suit.

By the Amendment Act of 1956 the words 'and a purchaser at a sale in execution of the decree' were added to the above explanation thus bringing the plaintiff-auction purchaser in this suit as a party to the proceeding. The above amendment came into force on the 1st January 1957. The learned appellate Court, however, was of the view that the suit having been filed in 1954, the suit will be governed by the procedure before the above amendment came into farce. Here, however, the learned appellate Court was wrong. After a series of decisions of the Supreme Court that the law of procedure operates retrospectively, this point is no longer open to any doubt. In a case reported in Anant Gopal Sheorey v. The State of Bombay, AIR 1958 SC 915 their Lordships held that no person has a vested right to any courses of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. In view of this position of law, the amended explanation applies to the case and the plaintiff-auction-purchaser now becomes a party in an application under Section 47 of the C. P. C. It is also open to the Court under Sub-section (2) quoted above to convert a suit to a proceeding or a proceeding to a suit.

7. Mr. Mohanty made a request to remand the case to the lower appellate court with the direction to convert this suit to a proceeding under Section 47. I would have no hesitation to concede to this request, but for the further difficulties in the way. The next and the main question is whether a dispute of the present nature is one relating to execution, discharge of satisfaction of the decree under Section 47 C. P. C. There are a number of authorities of different High Courts in India holding the view that an application by the auction-purchaser for delivery of possession does not relate to execution, discharge or satisfaction of the decree.

A Full Bench of the Allahabad High Court in a case Mst Suraj Dei v. Mst. Gulab Dei, reported in (S) AIR 1955 Ail 49 (FB), held that the right of decree holder to have the property sold and possession delivered to him flows from his being the highest bidder and not from the decree. The position, therefore', of a decree-holder is exactly the same as that of any other person who bids at an auction sale. An application for delivery of possession cannot be made by the decree-holder as such, as the decree gives him no such right. It is an application by him as the auction purchaser of the property. The mere fact that the executing Court is authorised after it has confirmed the sale in favour of the auction-purchaser to direct delivery of possession to him, does not necessarily make it a question relating to execution, discharge or satisfaction of the decree within Section 47, C. P. C. It was further held-in that case that the auction purchaser is not a representative of the decree-holder but of the judgment-debtor and any dispute arising between the auction-purchaser and the judgment-debtor would amount to a dispute between the judgment-debtor and his own representative and cannot come under Section 47, C. P. C. While laying down the above, their Lordships relied upon one of their earlier Full Bench decision reported in Kedarnath v. Arun Chandra, AIR 1937 All 742 (FB).

A Full Bench of the Bombay High Court in a case reported in Hargovind Fulchand v. Bhudar Raoji, AIR 1924 Bom 429 (FB), held that the claim for possession by a decree-holder-auction-purchaser is not within Section 47 C. P. C. The decree-holder purchaser does not seek to get possession in the execution of the decree, but by virtue of his being declared a purchaser at the auction sale. The question also directly came up for consideration before a Special Bench of the Patna High Court where the question that was considered was where a suit instituted by the decree-holder-auction purchaser or his representative-in-interest for recovery of possession of the property purchased in execution of the decree is barred by the provisions of Section 47, C. P. C. In other words, whether the decree-holder who becomes a purchaser of the property sold in execution of his own decree ceases as such to be a party to the suit and whether the question relating to the delivery of possession of the property purchased by the decree-holder is a question relating to the execution, discharge or satisfaction of the decree. The question was answered in the negative and their Lordships held that the suit instituted by the decree-holder-auction purchaser or his re-presentative-in-interest for recovery of possession of the property purchased in execution of the decree is not barred by the provisions of Section 47, C. P. C. and the suit is governed by Article 138 of the Limitation Act, which provides a period of limitation for 12 years from the date when the sale became absolute. Tribeni Prasad Singh v. Rama-asray Prasad, AIR 1932 Pat 80.

8. Mr. Mohanty, however, relied upon a decision of the Nagpur High Court, in Ramavtar Laxman Prasad v. Mt. Jagranibai, AIR 1956 Nag 81, where their Lordships relying upon a previous decision of their own Court held that when the judgment-debtor is offering resistance to the delivery of the property sold in execution to a stranger auction purchaser the stranger auction, purchaser is a representative of the decree-holder and the dispute is one under Section 47 of the C. P. C.

Mr. Mohanty also drew my attention to the 1962 Jab. LJ (SN) 72, where the learned single Judge of the High Court of Madhya Pradesh followed the aforesaid decision of the Nagpur High Court in the case of Wahidulla Khan v. Ramkrishna. None of the above decisions, however, took note of the Full Bench decisions of the High Court of Bombay, Allahabad and Patna, referred to above, with which I entirely agree in preference to the view expressed by the Nagpur High Court.

9. As already seen, the sale took place on 16-2-1962 and it was confirmed on 16-2-1963 and the suit was therefore filed within twelve years and thus within time under Article 138 of the Limitation Act, and in view of the position of law discussed above, the suit is also maintainable.

10. No other point was raised. Thus the plaintiff's suit is bound to succeed and the appeal is accordingly dismissed with costs.


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