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Mayadhar Misra Vs. Pramod Chandra Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 107 of 1966
Judge
Reported inAIR1969Ori144; 35(1969)CLT287
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 110, 115 and 151 - Order 21, Rule 98 - Order 34, Rule 5
AppellantMayadhar Misra
RespondentPramod Chandra Misra and ors.
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateS.N. Misra, ;D.S. Misra and ;A.K. Jena, Advs.
DispositionAppeal allowed
Cases ReferredSadhucharan v. Sudarshan
Excerpt:
.....lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the theory is that after confirmation of the sale the decree becomes satisfied and the property sold is no longer available to be pursued for execution, discharge or satisfaction of the decree. that was the old view, but no longer stands good, in view of the amendment of the explanation to section 47, civil p......court of the munsif, second court, cuttack, against the aforesaid three mortgagors and obtained a decree.execution case no. 53 of 1960 was filed against mayadhar misra, rajani dibya and krishna chandra misra in respect of a claim of rs. 1245. the property was put to sale in execution of the decree and on 5-5-61 cuttack bank purchased the mortgaged properties for rs. 1045. the sale was confirmed and execution case was dismissed on part satisfaction on 12-7-61. cuttack bank merged with the united bank on 4-9-61. on 23-1-62 united bank asked for delivery of possession of the property. on 23-8-62 united bank sold the disputed property to mayadhar misra for rs. 1600, on 27-9-62 the application by united bank for delivery of possession was rejected as no steps were taken.on 19-1-63 mayadhar.....
Judgment:

G.K. Misra, J.

1. Mayadhar Misra (Appellant), Nagendranalh Misra and Krishna Chandra Misra are three brothers. Pramod Chandra Misra (respondent No. 1) minor is the natural born son of Krishna Chandra Misra and claims to be the adopted son of deceased Nagendranath Misra whose widow is Rajani Dibya (respondent No. 2). The three brothers executed a mortgage bond in favour of the Cuttack Bank Ltd., (respondent no 3). On 23-6-53 there was a registered partition deed amongst the three brothers whereby it was agreed that Krishna Chandra Misra would pay up all the joint family debts of which the aforesaid mortgage bond was one. As there was no payment, Cuttack Bank filed Mortgage Suit No. 229 of 1959 in the Court of the Munsif, Second Court, Cuttack, against the aforesaid three mortgagors and obtained a decree.

Execution Case No. 53 of 1960 was filed against Mayadhar Misra, Rajani Dibya and Krishna Chandra Misra in respect of a claim of Rs. 1245. The property was put to sale in execution of the decree and on 5-5-61 Cuttack Bank purchased the mortgaged properties for Rs. 1045. The sale was confirmed and execution case was dismissed on part satisfaction on 12-7-61. Cuttack Bank merged with the United Bank on 4-9-61. On 23-1-62 United Bank asked for delivery of possession of the property. On 23-8-62 United Bank sold the disputed property to Mayadhar Misra for Rs. 1600, On 27-9-62 the application by United Bank for delivery of possession was rejected as no steps were taken.

On 19-1-63 Mayadhar filed an application for being substituted as auction purchaser in place of United Bank and for delivery of possession. Respondents 1 and 2 filed an objection under Sections 47 and 151 Civil P. C. alleging that the mortgaged property was kept in charge of Mayadhar Misra for repayment of the mortgage dues, and that Mayadhar taking advantage of the minority of respondent No. 1 and the helplessness and ignorance of respondent No. 2 purchased the property from United Bank to deprive them of their title. The sale in favour of Mayadhar was collusive. They accordingly prayed that delivery of possession of the property should not be given to Mayadhar. The executing Court overruled this objection holding that it had no merit. The lower appellate Court has held that respondents 1 and 2 established their case and that the application for delivery of possession by Mayadhar was not maintainable. Against the reversing appellate decree this Misc. Appeal has been filed by Mayadhar.

2. Mr. Sinha raised two contentions-

(i) The delivery of possession of the property purchased by the Cuttack Bank in auction sale in execution of the decree has nothing to do with the execution, discharge or satisfaction of the decree and hence the objection under Section 47 is not entertain-able.

(ii) The learned lower appellate Court acted contrary to law in holding that respondents 1 and 2 established their objection on merits.

3. The explanation to Section 47, Civil P. C. lays down that for the purposes of that section a purchaser at a sale in execution of the decree is a party to the suit. The question raised by respondents 1 and 2 would thus be one between them as judgment-debtors and Mayadhar as the transferee from the auction purchaser who is to be deemed as a party to the suit by virtue of the explanation, and not on the basis of the theory that he is the judgment-debtor or the representative of the judgment-debtor. On this ground the application cannot be said to be non-maintainable.

4. The next question for consideration is whether the objection to the delivery of possession after the confirmation of the sale relates to execution, discharge or satisfaction of the decree. On this point there is conflict of authority. So far as this Court is concerned, the consistent view is that this is not such a question and does not come within the purview of Section 47. In AIR 1931 Pat 241 (FB), Tribeni Prasad Singh v. Ramasray Prasad Choudhari, a Full Bench of Patna High Court held that where the property was purchased in execution of a decree for sale under a mortgage or a simple money decree, the application for delivery of possession does not relate to execution, discharge or satisfaction of the decree. The theory is that after confirmation of the sale the decree becomes satisfied and the property sold is no longer available to be pursued for execution, discharge or satisfaction of the decree. The rival view as prevalent in Madras and Calcutta was critically examined and was not accepted.

The aforesaid principle has, however, no application to applications for recovery of possession in execution where the decree itself directs delivery of possession. In such a case delivery of possession constitutes an integral part of the decree. In ILR 1963 Cut 393, Dinabandhu v. Soma-nath, the aforesaid distinction was pointed out and the Full Bench decision was accepted as correct. In AIR 1965 Orissa 2, Sadhucharan v. Sudarshan, the aforesaid Full Bench decision was followed and his Lordship observed that in a case where the decree does not direct delivery of possession, any application for recovery of possession does not pertain to execution, discharge or satisfaction of the decree.

In paragraph 7 of that judgment there is slight inaccuracy in the observation that the auction purchaser is a representative of the judgment-debtor. That was the old view, but no longer stands good, in view of the amendment of the explanation to Section 47, Civil P. C. in 1956 whereby the auction purchaser was included to be deemed as a party to the suit for the purpose of that section. His Lordship was aware of this position in paragraph 6 but possibly inadvertently made a contrary observation in paragraph 7. That has however no bearing on the question under discussion,

5. In this case admittedly the sale was confirmed on 12-7-61. The application for delivery of possession was made by Mayadhar about 1 1/2 years after. The objection raised by respondents 1 and 2 under Section 47, Civil P. C. does not relate to execution, discharge or satisfaction of the decree, and docs not come within (he scope of Section 47. The learned lower appellate Court should have overruled this objection. It is open to respondents 1 and 2 to file a separate suit to establish their claim, if so advised,

6. On another ground also this appeal is to be allowed. As has already been stated, the objection does not come within the purview of Section 47. The order of the executing Court must be taken to have been passed under Section 151, Civil P. C. Respondents 1 and 2 were adversely affected by that order and should have come up in revision. No appeal lay against that order.

7. In the result, the judgment of the lower appellate Court is set aside and that of the trial Court restored. The Misc. Appeal is allowed. In the circumstances parties to bear their own costs throughout.


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