1. This is a suit to recover a temple office which is alleged to be hereditary in the plaintiff's family and which was purchased at a court-auction by the defendant in execution of a decree against a previous holder of the office. The plaintiff obtained a decree in the lower appellate court on the ground that the office was erne of personal service and that the attachment and sale were bad as opposed to Section 266(f)of the Code of Civil Procedure. It is now contended that such a suit is barred by the operation of Section 244 of the Civil Procedure Code and should have been dismissed. It is well settled that as between the judgment debtor and the decree-holder, this is an objection which can only, be taken in execution and it is also well settled that the provisions of Section 244 prohibit a suit by a party or his representatives against An auction-purchaser to raise a question which, as between the judgment-debtor and the decree-holder, must have been determined under that section - Basti Ram v. Fattu (1886) I.L.R. 8 A. 146; Daulat Singh v. Jugal Kishore I.L.R. (1900) A. 108 and Mayan Pathuti v. Pakuran I.L.R. (1900) M. 347. These decisions are not based on the ground that the auction-purchaser is the representative of the decree-holder within the meaning of the section, but upon the general intention of the legislature as manifested in the section. The view that the auction-purchaser may be treated as the representative of the decree-holder in cases arising between him and the judgment-debtor was no doubt taken in Manikka Odayan v. Rajagopal Pillai I.L.R. (1907) M. 507 relying on Sadhu Taraganar v. Hussain Sahib I.L.R. (1905) M. 87 in preference to the authorities cited the other day. But as pointed out in Krishna Satapasti v. Sarasvatula Sambasiva Row I.L.R. (1908) M. 177, Sadhu Taraganar v. Hussain Sahib I.L.R. (1905) M. 87 does dot support so general a proposition, as in that case the decree-holder was the auction-purchaser and the parties in question were his representatives by virtue of their purchase from him. The decision in Manikka Odayan v. Rajagopala Pillai I.L.R. (1907) M. 507 should. I think, have been supported on the ground that the application raised a question between the representatives of the judgment-debtor and the decree-holder in which the auction-purchaser had been added as a party interested - Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. (1895) 19 C. 683 (P.C.); Hira a Lal Ghose v. Chundro Kanto Ghose I.L.R. (1899) C. 539. In the present case we must reverse the decree of the lower appellate court and restore that of the District Munsif with costs here and in the lower appellate court.
Krishnaswami Aiyar, J.
2. A decree was passed against the plaintiff's father in O.S. No. 90 of 1894 on the file of the. Sri-rangam Munsif for maintenance, making the emoluments of the Mirasi office of accountant in the Srirangam temple liable, The decree was executed against the plaintiff after the death of his father and it must be taken that due notice was issued to the plaintiff of the proceedings in execution. The office of accountant was itself attached and, assuming that the attachment was irregular, no exception having been taken to the attachment, the attached property was sold on the 16th July 1897 and the sale confirmed. The defendant, who purchased the office in execution, obtained possession of it in November 1903. The plaintiff institutes the present suit for the surrender by the defendant of the Mirasi office on the ground that the sale was null and void. The plaintiff having obtained a decree in the District Court, the defendant has preferred this second appeal. It seems to me that the suit is not maintainable. The plaintiff was a party to the execution proceedings and the only mode in which he can impeach the sale is by an application to the executing court to set aside the sale. It is argued for the plaintiff that the sale is a nullity because the decree did not direct, the sale of the office and the office was inalienable. There was a personal decree against the plaintiff's father and even assuming that the office was not charged with the liability, it could be proceeded against in execution of the money decree. Supposing that the office was inalienable, on which I do not express an opinion, it was competent to the executing court to deal with the question whether the office was saleable. No exception having been taken in execution to the sale, we must take it that the sale was rightly held. The defendant cannot be ousted from possession until the sale is duly set aside. No attempt having been made by the plaintiff to impeach the sale in execution and the sale having been confirmed, it is not competent to the plaintiff to disturb the possession of the auction-purchaser by suit. See Mayan Pathuti v. Pakuran I.L.R. (1898) M. 347 and Kishory Mohan Roy v. Mahomed Mujaffar Hossein I.L.R. (1890) C. 188. The auction-purchaser derives his rights from the sale which the party to the execution proceeding should not be permitted to impeach except by application to the executing court. The true principle has been sometimes overlooked and the bar to the suit of the judgment-debtor against the stranger-purchaser or vice versa rested on Section 244 of the Code of Civil Procedure, the suit being supposed to raise a question between the parties to the suit or heir representatives. See Dhani Ram v. Chaturbhuj I.L.R. (1900) A. 86 and Daulat Singh v. Jugal Kishore I.L.R. (1900) A. 108.
3. But this latter view appears to me to be erroneous. The mistake arises from a confusion between two ideas. One is that Section 244 being a bar to setting aside the sale except in a proceeding between the parties, the suit against the purchaser is not maintainable until it is so set aside. The other is that Section 244 bars the suit as the purchaser is the representative of the decree-holder. It seems to me the former view is correct. Section 335 would be consistent with the latter. We cannot heat this suit as an application under Section 244 to set aside the sale as the decree-holder who would be affected by it is not a party. It is perhaps unnecessary to discuss the question whether Section 244 is a bar to the present suit though I have no hesitation in expressing my concurrence with the decision in Krishna Satapasti v. Sarasvatula Sambasiva Row I.L.R. (1907) M. 177. It seems to me that the view upheld in Manikka Odayan v. Rajagopala Pillai I.L.R. (1907) M. 507 that the auction-purchaser is the representative of the decree-holder in execution of a money decree is not tenable. Sadhu Taraganar v. Hussain Sahib I.L.R. (1905) M. 87, which was the case of a purchaser from the decree-holder who purchased in execution of his own decree, is different from the case of a stranger-purchaser. It is difficult to see how a stranger purchasing in execution of a money decree can ever be treated as the representative of the decree-holder. He purchases the rights of the judgment-debtor in the property attached and not those of the decree-holder between whom and himself there is no privity of estate. It may sometimes be that the purchase carries more than the interest of a judgment-debtor, as for example when the judgment-debtor has done something with the property in fraud of the decree-holder. The stranger-purchaser cannot be the representative of both parties. The true rule is that where the decree is a mortgage decree, the purchaser in execution will be the representative of the judgment-debtor. Where property is attached and sold tinder a money decree a stranger purchasing the property obtains the right of the judgment-debtor in the property but is riot the representative even, of the judgment-debtor; still less can he be the representative of the decree-holder. The authorities cited by the learned Judges in Manikka Odayan v. Rajagopala Pillai I.L.R. (1907) M. 507 are against the view which they have enunciated. See Bashir Uddin v. Jori Singh I.L.R. (1896) A. 140; Mammod v. Locke I.L.R. (1897) M. 487; Chinnammal v. Authinatha Iyengar : (1900)10MLJ228 . It appears to me that Sadhu Taraganar v. Hussain Sahib I.L.R. (1905) M. 87 was relied on under a misapprehension as pointed out in Krishna Satapasti v. Sarasvatula Sambasiva Row I.L.R. (1907) M. 177, Nor do the other eases, viz., Kasinatha Ayyar v. Uthumansa Rewthan I.L.R. (1902) M. 529, Isham Chunder Sirkar v. Beni Madhub Sirkar I.L.R. (1897) C. 62 and Prosunno Kumar Sanyal v. Kali Das Sanyal (1895) I.L.R. 19 C. 683. (P.C.) support the judgment in Manikka Odayan v. Rajagopala Pillai I.L.R. (1907) M. 507. Section, 244 therefore does not bar the suit.
4. I would, however, in the view already expressed, get aside the decree of the District Judge and dismiss the suit with costs throughout.