1. The question which has been raised in this case is a pure of question of law, and the facts on which it depends are beyond dispute The question is as to the right of suit, and we have therefore to decide it, though it was not raised in the Courts below.
2. The plaintiff was the decree-holder in Original Suit No. 409 of 1880 and became purchaser of the plaint property which was sold in execution of that decree. He applied under Section 318, Civil Procedure .Code, for delivery of the property purchased, but his application was rejected as barred by limitation having been made more than 3 years after the confirmation of the sale, and he brings the present suit to recover possession of the land from the defendant who was the judgment-debtor in C. S. No. 409 of 1880.
3. The appellant's Vakil contends that the suit is barred by Section 244, Civil Procedure Code. If the question were 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.
4. It has, however, been decided in the case reported in Muttia v. Appasami I.L.R. 13 M. 504. Lakshmanan Chettiar v. Kannammal I.L.R. 24 M. 185. Madhusu-dandas v. Govinda Priachowdhrani I.L.R. 27 C. 34. and Kasinatha Aiyar v. Uthumansa Rowthan I.L.R. 25 M. 529 per Moore, J. that such proceedings between the decree-holder when he is the purchaser and the judgment-debtor are proceedings in execution of the decree and relate to its execution.
5. Following the authority of these cases we allow the second appeal and reversing the decree of the Lower Court restore that of the District Munsif dismissing the suit. As the plea on which the appellant succeeds was not taken in the Courts below, we leave each party to bear his own costs throughout.