Alfred Henry Lionel Leach, C.J.
1. This appeal adds another case to the long list of cases which have reference to the effect of Section 47 of the Code of Civil Procedure. The facts of the present case are of an unusual nature and there is no reported decision which directly covers it. In execution of a small cause decree passed by the Court of the District Munsif of Palghat the property which is the subject-matter of this appeal was purchased on the 17th September, 1917, by one Krishnier to whom was issued the usual sale certificate. On the 7th January, 1918, Krishnier conveyed the property to two persons, Krishna Pattar and Subbalakshmammal, who by a deed dated the 3rd February, 1927, sold it to K.V. Krishna Aiyar, the present appellant. At the time of the sale the property was in the possession of Lakshmi Ammal, a sister of Sankaranarayana Aiyar, the judgment-debtor. She held the property as a monthly tenant of her brother. In 1919 she surrendered the possession of the property to Sankaranarayana Aiyar, who thereupon granted a monthly tenancy of it to a person named Kuppiah Pattar. In 1923 Kuppiah Pattar assigned his rights to one K.G. Subramania Aiyar who remained in possession of the property as a monthly tenant of Sankaranarayana Aiyar until 1927 when he purchased the property from Sankaranarayana Aiyar. Neither Krishnier nor the appellant ever obtained actual or symbolical possession of the property. The suit out of which this appeal arises was filed by the appellant against Sankaranarayana Aiyar and K.G. Subramania Aiyar for possession. In his plaint the appellant treated the surrender of the property by Lakshmi Ammal to Sankaranarayana Aiyar as an assignment to him of her tenancy and Sankaranarayana Aiyar and K.G. Subramania Aiyar as successive holders of the tenancy. One line of defence was that the appellant had acquired no interest in the property. It was said that the transfer by Krishnier to Krishna Pattarand Subbalakshmammal was a benami transaction and that the real title remained with Krishnier. The main contention, however, was that Section 47 of the Code of Civil Procedure barred the suit. The District Munsif found against the plaintiff on both issues and dismissed the suit. On appeal to the Subordinate Judge of South Malabar the decree of the trial Court was reversed, the Subordinate Judge holding that the transaction was not benami and that Section 47 did not apply. A second appeal to this Court followed and was heard by Venkataramana Rao, J., who agreed with the District Munsif on the question of the application of Section 47, but granted him leave to file an appeal under Clause 15 of the Letters Patent. The decision of the Subordinate Judge was final on the question whether the transaction between Krishnier and Krishna Pattar and Subbalakshmammal was of a benami nature.
2. The question which falls for decision is in what capacity did Sankaranarayana Aiyar obtain possession of the property from his sister? If he obtained possession of the property in the same capacity as he held at the time of the sale in execution the appeal fails; but if he obtained it in another capacity the appeal succeeds. As Venkataramana Rao, J., has pointed out in his judgment, so far as this Court is concerned, it is well settled that proceedings by a decree-holder who has become the auction-purchaser for delivery of possession must be deemed to relate to the execution or discharge or satisfaction of the decree within the meaning of Section 47 of the Code of Civil Procedure. It is considered that the section bars a suit by a decree-holder for possession of the property purchased by him in execution of his own decree not only against the judgment-debtor or any one claiming under him but the bar is equally applicable to a purchaser from the decree-holder. The learned Judge referred in this connection to the decisions of the Court in Sandhu Taraganar v. Hussain Sahib : (1904)14MLJ474 and Sornam Pillai v. Tiruvazhiperumal Pillai : AIR1926Mad857 . In Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 (F.B.) it was held by a Full Bench that a purchaser at a Court auction who is a stranger to the suit comes within the purview of Section 47 as the representative of the judgment-debtor. There are numerous decisions which support the judgments in the cases just cited. The Calcutta High Court shares the view of this Court: Kailash Chandra Tarapdar v. Gopal Chandra Poddar I.L.R.(1926) 53 Cal. 781 (F.B.). Other High Courts have, however, interpreted Section 47 in a different sense. The effect given to Section 47 by this Court has not been accepted without criticism by all the learned Judges who have had to consider the question. In Kattayat Pathumayi v. Raman Menon (1902) 13 M.L.J. 237 : I.L.R. 26 Mad. 740 Benson and Bashyam Aiyangar, JJ., doubted whether proceedings taken by a decree-holder who had purchased property to obtain possession did relate to the execution, discharge or satisfaction of the decree, but in view of the earlier decisions they felt constrained to follow them. In Sandhu Taraganar v. Hussain Sahib : (1904)14MLJ474 , Arnold White, C.J., observed that if the matter were res Integra, he would be disposed to hold that the right to sue for possession was not a question relating to the execution, discharge or satisfaction of the decree, where the plaintiff represented a decree-holder who had purchased land in execution of the decree. It has, however, been the practice of this Court for over 50 years to treat Section 47 as having the application which I have indicated and in my opinion it is now far too late in the day to re-open the question. This appeal must, therefore, be decided on the basis that a decree-holder who purchases property in execution cannot institute a suit to recover possession from the judgment-debtor or some one who stands in the shoes of the judgment-debtor and his remedy is confined to an application, where the period of limitation is only three years.
3. As I have already pointed but, the appellant's case is based on the assumption that Sankaranarayana Aiyar got possession of the property in 1919 as the assignee of the tenancy. It is common ground that a suit for possession will lie if this was the position, as a tenant cannot be regarded as a representative within the meaning of Section 47 where as in this case, the tenancy had commenced before the attachment. In the plaint it was alleged that Lakshmi Ammal fraudulently colluded with Sankaranarayana Aiyar in surrendering the property to him, but no attempt was made to prove this and for the purposes of this appeal it must be taken that her action was bona fide. The appellant contends that a tenant can only surrender his tenancy to the landlord or if the landlord has parted with his rights in the property to the person who has acquired the landlord's rights and as by reason of the provisions of Section 65 of the Code of Civil Procedure the property in suit vested in Krishnier from the time he bought it at the. Court auction, Lakshmi Animal could not in law surrender the tenancy to her brother. At the time she purported to do so he had no interest in the property. It is said that at the most her action put Sankaranarayana Aiyar in the position of an assignee of the tenancy. There is substance in the argument, but it is not necessary for the purpose of deciding this appeal to pause to inquire whether there is any flaw, because if Sankaranarayana Aiyar cannot in law be deemed to have entered into possession of the property in 1919 as the assignee of the tenancy entered into possession without right and was, therefore, in the eyes of the law a trespasser. A trespasser clearly cannot rely on Section 47 to support his possession. The fact that Krishnier did not apply for and obtain symbolical possession of the property under the provisions of Order 21, Rule 96 of the Code of Civil Procedure could not affect his right to the property. The property vested in him absolutely, with or without symbolical possession, as soon as he became the auction purchaser. Rule 96 is there to assist an auction purchaser to secure recognition of rights already acquired. Venkataramana Rao, J., considered that it was obligatory on the part of the appellant to obtain symbolical possession, and that Lakshmi Ammal was bound in law to surrender the property to the person who had granted her tenancy, but the learned Judge overlooked the provisions of Section 65. The fact that Lakshmi Ammal was unaware of the Court auction would excuse her from liability in surrendering possession of the property to her brother, but the surrender could not put him in any better position. It must be remembered that there is a the freehold, that imports that such person is seised of the estate of freehold. At the time of the auction sale Sankaranarayana Aiyar was seised of the property but was not in possession of it and the auction sale took away from him his seisin and gave it to the auction purchaser. The moment the sale took place his rights in the property ceased, and when his sister put him in possession in 1919 he went into possession without any rights unless in the circumstances he could be deemed to be assignee of the tenancy. So far as the property was concerned the execution was complete and he was no longer the judgment-debtor.
4. For the reasons indicated I am firmly of the opinion that the case does not fall within the purview of Section 47 of the Code of Civil Procedure and I would allow the appeal with costs throughout.
5. I agree.
K.S. Krishnaswami Aiyangar, J.
6. I also agree.