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Thondam Annamalai Mudali Vs. Tiruttani Ramasami Mudali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad161; (1941)1MLJ45
AppellantThondam Annamalai Mudali
RespondentTiruttani Ramasami Mudali and ors.
Cases ReferredDinendronath Sanyal v. Ramcoomar Ghose
Excerpt:
- - this was clearly not a contest between the parties to the suit or their representatives, but it was a contest between a stranger and a person who claimed to represent the decree-holder. and bards-well, j. on a careful consideration of these cases, however, i am clearly of opinion that the grounds on which they are based cannot reasonably be held to apply to the case of a stranger auction-purchaser whose position seems, for this purpose, to be essentially different from that of a decree-holder auction-purchaser. these decisions proceed on the ground that where a decree-holder himself purchases the property in court auction, he cannot be regarded as having secured the full fruits of his decree until he obtains delivery of possession of the property purchased and the decree cannot be.....alfred henry lionel leach, c.j.1. this full bench has been constituted to decide two questions referred by krishnaswami aiyangar and somayya, jj., in a second appeal arising out of a suit for possession. the two questions are:1. whether an application by a stranger auction-purchaser for delivery of possession as against the judgment-debtor or his representative is covered by section 47(c. p. code)?2. whether section 47 applies to a case where the dispute arises between a party and his own representative or between the two persons who both represent the same party?2. before proceeding to discuss these questions i will state the circumstances under which they arise.3. one kalathi mudaliar obtained a money decree and on the 18th september, 1921, in execution of that decree attached certain.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This Full Bench has been constituted to decide two questions referred by Krishnaswami Aiyangar and Somayya, JJ., in a second appeal arising out of a suit for possession. The two questions are:

1. Whether an application by a stranger auction-purchaser for delivery of possession as against the judgment-debtor or his representative is covered by Section 47(C. P. Code)?

2. Whether Section 47 applies to a case where the dispute arises between a party and his own representative or between the two persons who both represent the same party?

2. Before proceeding to discuss these questions I will state the circumstances under which they arise.

3. One Kalathi Mudaliar obtained a money decree and on the 18th September, 1921, in execution of that decree attached certain immovable property. On the 26th September, 1921, the judgment-debtor's widow sold the property to defendants 1 to 3. On the 7th January, 1922, the property was sold by the Court in the execution proceedings and the plaintiff, a stranger, became the auction-purchaser. On 1st March, 1932, the plaintiff filed a suit for possession of the property. The trial Court (the District Munsif's Court of Tirupathi) dismissed the suit on the ground that Section 47 of the Code of Civil Procedure barred its institution. The plaintiff then appealed to the Court of the District Judge of Chittoor, who concurred in the decision of the trial Court and against his decision the second appeal out of which this reference arises was filed. The learned Judges who have made the reference have made an exhaustive examination of the authorities, and although it will be necessary to refer to some of the cases with which they have dealt it will not be necessary to travel over all the ground.

4. Section 47 of the Code of Civil Procedure reads as follows:

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. Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

5. It will be observed that for a matter to come within the purview of the section the following conditions must be fulfilled : (i) It must relate to a question arising between the parties to the suit in which the decree was passed or their representatives, and (ii) it must relate to the execution, discharge or satisfaction of the decree. If these conditions are fulfilled the question must be determined by the Court executing the decree and a separate suit will not lie.

6. In Prosunno Kumar Sanyal v. Kali Das Sanyal , the Privy Council, while pointing out that Section 244 of the Code of Civil Procedure, 1872, which corresponds to Section 47 of the present Code, contemplated a question between the parties to the suit with regard to the execution, discharge or satisfaction of the decree, observed that it did not necessarily follow that the question must be raised by a party to the suit. An auction-purchaser could have a question decided under Section 244 when the question raised was a question which affected the parties. The Board did not, however, consider the question whether an auction-purchaser was a representative of the decree-holder or of the judgment-debtor.

7. There has been much controversy in this and other High Courts in India with regard to the question whether a stranger to a suit who purchases property at a Court auction in execution of a money decree must be regarded as a representative of a party. Owing to a conflict of decisions of this Court, Oldfield and Seshagiri Aiyar, JJ., in Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 , referred the following questions to a Full Bench:

1. Whether a purchaser at a sale held in execution of a money decree is a representative of a party and, if so, of which party for the purpose of inquiry into a question relating to the execution of (a) that money decree, (b) any other decree affecting the purchased property and against the same judgment-debtor?

2. Whether a purchaser from a decree-holder purchaser under a money decree is a representative of a party for either of these purposes and, if so, of which?

3. Whether a stranger purchaser at a sale in execution of a mortgage decree is the representative of a party and, if so, of which?

8. The Full Bench which was constituted to decide these questions was composed of Abdur Rahim, Officiating Chief Justice, and the two referring Judges. The learned Judges delivered separate judgments, but in no judgment were precise answers given to the questions referred, although the judgments of Oldfield and Seshagiri Aiyar, JJ., have been construed as holding that a stranger auction-purchaser in execution of a money decree must be regarded as a representative of the judgment-debtor. Abdur Rahim, Officiating Chief Justice, answered the question in this way:

The law, therefore, in my opinion is that a person who has bought the property of the defendant in a suit since the institution of that suit, whether at a Court auction held in execution of a money decree passed in another suit or by private purchase, is entitled and bound to have any question relating to the execution, discharge or satisfaction of the decree decided under Section 47 by the Court executing the decree, when his interest is affected either by the decree itself or by the sale held in execution of that decree; and the same rule applies to a purchaser of the property under such sale, whether he is the decree-holder himself or a stranger. Whether the purchaser in the one case or the auction-purchaser in the other is to be regarded as the representative of the judgment-debtor or the decree-holder depends upon the nature of the question raised and who the contesting party is.

9. In a later case, Yagnasami Aiyar v. Chidambaranatha Mudaliar (1920) 13 L.W. 15, the learned Officiating Chief Justice sitting with Odgers, J., expressly stated that the decision in Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 , may be taken as deciding that the auction-purchaser is a representative of the judgment-debtor. Oldfield, J., held that the purchaser in execution of a money decree is ordinarily the representative of the judgment-debtor. Seshagiri Aiyar, J., expressly held that he was not the representative of the decree-holder, and left it to be inferred that he was the representative of the judgment-debtor. His answers to the questions referred were in these words:

I would therefore answer all the questions referred to us by saying that if the points for decision in an application before the executing Court relate to the rival rights of the decree-holder and of the judgment-debtor and also relate to execution, discharge or satisfaction of the decree, it should be dealt with in execution and not by separate suit. The right of appeal and second appeal will be governed by the same rules as affect applications under Section 47.

10. Notwithstanding the lack of precision in language used in the judgments it has been accepted by the parties concerned in the present reference that Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 did put an end to the controversy whether a stranger auction-purchaser at a sale held in execution of a money decree is the representative of the judgment-debtor, and I see no reason to take a different view. All the right, title and interest of the judgment-debtor passes to the stranger auction-purchaser and therefore he stands in the shoes of the judgment-debtor. Different considerations may arise when a sale is held in pursuance of a mortgage decree as the mortgagee's interest has there to be considered, but it is not necessary to define the position of an auction-purchaser in such a case as here the Court is merely concerned with the position which arises when there has been a sale of the property, attached under a decree for payment of money.

11. The contest in the suit out of which this reference arises is, as has been shown, between a stranger auction-purchaser in execution proceedings relating to a money decree and the purchasers in a private sale from the widow of the judgment-debtor. The judgment-debtor having died the property devolved on the widow. The conflict is merely one between persons claiming under the judgment-debtor and the decree-holder is in no way concerned with it. He has been paid his money and has disappeared from the proceedings. The contest not being a contest between the parties to the suit or their representatives, but a contest between persons claiming under one of the parties, the case does not fall within the decision of the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal and this being the position the dispute cannot be settled in an application under Section 47 of the Code of Civil Procedure. With this expression of opinion I will now proceed to answer the questions referred.

12. The answer which I give to the first question is that a stranger who purchases property at a Court auction held in execution of a money decree is not entitled to apply for possession as against the judgment-debtor or his representative in interest under Section 47. When the judgment-debtor or any one at his instigation resists or obstructs the auction-purchaser the latter must proceed in accordance with the provisions of Order 21, Rule 97. The answer to the second question is directly in the negative. The aggrieved party's remedy in such a case is by way of suit.

13. These answers, in which my learned brothers concur, although my learned brother Patanjali Sastri bases his answer to the first question on different grounds, involve the overruling of the decisions in Subbu Thayammal v. Chidambara Asari (1901)Mad. 383, Sorimuthu Pillai v. Muthukriskna Pillai I.L.R.(1932) 65 M.L.J. 253 : I.L.R. 56 Mad. 808 and Narasimha Aiyar v. Venkatachalapathi Aiyar (1933) 67 M.L.J. 207 : I.L.R. 57 Mad. 457. In Subbu Thayammal v. Chidambara Asari I.L.R.(1901)Mad. 383, Davies and Moore, JJ., held that an order refusing to recognise the transferee of a decree may, contest or no contest, for purposes of appeal, be regarded as an order passed under Section 244 of the Code of 1872. This was an application for execution by an assignee. It was objected to by an attaching creditor on the ground that the assignment was fraudulent. This was clearly not a contest between the parties to the suit or their representatives, but it was a contest between a stranger and a person who claimed to represent the decree-holder. In Sorimuthu Pillai v. Muthukrishna Pillai (1932) 65 M.L.J. 253 : I.L.R. 56 Mad. 808, Madhavan Nair, J., held that a contest between the auction-purchaser and the judgment-debtor fell within Section 47. The learned Judge refused to accept the decision of Abdur Rahim and Odgers, JJ., in Yagnasami Aiyar v. Chidambaranatha Mudaliar (1920) 13 L.W. 15 and preferred to decide the case on the decision of Ayling and Krishnan, JJ., in Jainulabdin Sahib v. Krishnan Chettiar : AIR1921Mad420 , in which it was held that a claim for the recovery of properties alleged to have been delivered to an auction-purchaser in excess of what was actually sold under a mortgage decree when the claim was raised by a defendant in a mortgage suit came within Section 47. The case before Madhavan Nair, J., was one relating to the execution of a money decree and Jainulabdin Sahib v. Krishnan Chettiar : AIR1921Mad420 was not really in point. The case which was in point was Yagnasami Aiyar v. Chidambaranatha Mudaliar (1920) 13 L.W. 15 which was rightly decided. Narasimha Aiyar v. Venkatachalapathi Aiyar (1933) 67 M.L.J. 207 : I.L.R. 57 Mad. 457 is a decision of Beasley, C.J. and Bards-well, J. There the assignee of a decree applied for execution. This was opposed by his assignor. Therefore the contest was one between the decree-holder and his own representative. The learned Chief Justice considered that the case was governed by sub-Section 3 of Section 47. That sub-section merely states that where a question arises as to whether any person is or is not the representative of a party such question shall for the purposes of the section be determined by the Court. This sub-section cannot be held to affect the meaning of the words used in Sub-section (1). The contest was not between the parties to the suit or their representatives. The contest was between one party and another person who claimed to stand in his shoes. In Subbu Thayammal v. Chidambara Asari I.L.R.(1901)Mad. 383, Sorimuthu Pillai v. Muthukrishna Pillai (1932) 65 M.L.J. 253 : I.L.R. 56 Mad. 808, and Narasimha Aiyar v. Venkatachalapathi Aiyar (1933) 67 M.L.J. 207 : I.L.R. 57 Mad. 457, the true effect of Section 47 was not realized and these cases having been wrongly decided they cannot be allowed to stand.

14. The costs of this reference will be made costs in the appeal.

Pandrang Row, J.

15. I agree with my Lord.

Abdur Rahman, J.

16. I agree.

Krishnaswami Aiyangar, J.

17. I also agree. I may add that the answers given by my Lord the Chief Justice are substantially the same as those which were indicated by the referring Bench of which I was a member.

Patanjali Sastri, J.

18. I agree with my Lord the Chief Justice that both the questions referred to the Full Bench should be answered in the negative, but as my answer to the first question rests upon different grounds, I am stating them in a judgment of my own.

19. As regards this question, it has to be observed that, though there has been considerable divergence of opinion among the other High Courts in India (see Kailash Chandra Tarapdar v. Gopal Chandra Poddar I.L.R.(1926)Cal. 781 , Bhagwati v. Banwari Lal I.L.R.(1908)All. 82 , Hargovind Fulchand v. Bhudar Raoji I.L.R.(1924)Bom. 550 , Tribeni Prasad v. Ramasray Prasad I.L.R.(1931)Pat. 670 , this Court has consistently adhered to the view, notwithstanding doubts expressed in some of the cases, that where a decree-holder himself is the auction-purchaser, questions as to delivery of possession to him relate to the execution, discharge and satisfaction of the decree within the meaning of Section 47, and there is a catena of cases to that effect from Muttia v. Appasami I.L.R.(1890) Mad. 504, to the recent decision in Krishna Aiyar v. Subramania Aiyar : (1939)1MLJ468 . Though none of them can be said to be binding on this Bench as it has been constituted, still as the question is merely one of procedure, it will not be desirable, as observed by my Lord, the Chief Justice, in the latest decision referred to above, to depart from this long course of decisions and upset what has been regarded in this presidency as a settled cursus curiae for over fifty years.

20. This consideration, however, does not apply to a stranger auction-purchaser seeking to obtain delivery of possession from a judgment-debtor or his representative, as there has been no such course of decisions settling the procedure in such a case. Indeed, I have not been able to find any decision of this Court holding that the question as to delivery of possession to a stranger auction-purchaser related to execution, discharge or satisfaction of the decree within the meaning of Section 47, except Jainulabdin Sahib v. Krishnan Chettiar : AIR1921Mad420 , which relied, for this point, on two cases which, however, related to decree-holder purchasers. The point was raised in Krishna Satapasti v. Saraswatula Sambasiva Rao I.L.R.(1908)Mad. 177, but it was left open as unnecessary to decide in that case, as the learned Judges based their conclusion on other grounds. And, though one of the appeals that came up before this Court in Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 , related to a stranger auction-purchaser seeking removal of obstruction by a person claiming under the judgment-debtor, it was there assumed by the referring Judges, without any discussion or consideration of the point, that the question as to delivery to such a person related to execution, discharge or satisfaction of the decree, and it was not among the questions referred to the Full Bench (see page 113); nor does it appear to have been considered by the Division Bench in their judgment finally disposing of the case after the Full Bench answered the reference (see Veyindramuthu Pillai v. Maya Nadan (1919) 39 M.L.J. 456 : I.L.R. 43 Mad. 696.

21. It seems to me, therefore, necessary to examine whether the principle underlying the series of decisions applying Section 47 to a decree-holder purchaser seeking delivery of possession applies equally to a stranger auction-purchaser asking for similar relief. For, if it does there will be no reason why the latter should also not be held bound to follow the same settled procedure by way of an application under that section. On a careful consideration of these cases, however, I am clearly of opinion that the grounds on which they are based cannot reasonably be held to apply to the case of a stranger auction-purchaser whose position seems, for this purpose, to be essentially different from that of a decree-holder auction-purchaser. These decisions proceed on the ground that where a decree-holder himself purchases the property in Court auction, he cannot be regarded as having secured the full fruits of his decree until he obtains delivery of possession of the property purchased and the decree cannot be deemed to be completely satisfied until such delivery is obtained. Any steps, therefore, that he might take for obtaining such delivery must be deemed to be steps in furtherance of the execution of his decree. In one of the earliest cases of this Court, Muttia v. Appaswami I.L.R.(1890)Mad. 504, Muttuswami Aiyar, J., observes:

I am unable to uphold the contention that the Court sale operated to satisfy the decree in O.S. No. 4 of 1882 and that a subsequent agreement regarding the purchase prior to the delivery of possession under Section 318 does not relate to the execution of the decree. The purchaser in this case was the decree-holder and the party obstructing the delivery of possession was a judgment-debtor, and the oral agreement set up in justification of the obstruction prevents in effect the completion of the purchase by transfer of possession.

(Italics mine).

22. Again at page 508, he observes:

The application for delivery under Section 318 is substantially an application for execution of the decree by ordering delivery of possession of the property purchased.

23. The Calcutta High Court which, after some conflict, has settled down to the same view on this point by a majority of four to one in the Full Bench case in Kailash Chandra Tarapadar v. Gopal Chandra Poddar I.L.R.(1926) Cal. 781 is equally clear as to the ratio decidendi. Chatterjea, A.C.J., observes at page 794:

The property purchased represents the money for which he obtained his decree. It is to be observed that the decree-holder has to purchase with the permission of the Court, and under Order 21, Rule 72, the purchase-money and the amount due on the decree may be set-off against one another. But the decree-holder does not actually get the benefit of the money due under his decree until he gets possession of the property of the judgment-debtor purchased by him.

24. In Bombay and Allahabad also, similar reasoning was employed in support of the same conclusion (see Sadasiv Bin Mahadu Dhole v. Narayan Vithal Mawal I.L.R.(1911)Bom. 452 , and the dissenting judgment of Stanley, C.J., in Bhagwati v. Banwari Lal I.L.R.(1908)All. 82 though it is no longer the prevailing view in those provinces. (See Hargovind Fulchand v. Bhudar Raoji I.L.R.(1924)Bom. 550 and Bhagwati v. Banwari Lal I.L.R.(1908)All. 82 .

25. Such being the ratio decidendi of the cases holding that questions as to delivery of possession to a decree-holder auction-purchaser relate to the execution, discharge or satisfaction of his decree, it cannot obviously apply to a case where a stranger purchases property in an execution sale. For, here, as soon as the sale is confirmed and the purchase-money is paid to the decree-holder, the debt due under the decree is satisfied pro tanto or in full, as the case may be, and so far as the property sold is concerned, the execution is at an end. The fruits of his decree have been secured whether or not the auction-purchaser obtains delivery of possession of the property brought to sale. On the other hand, the purchaser, provided he purchases bona fide, is not affected by any subsequent variation or even reversal of the decree (see Zainul-Abdin Khan v. Mahomed Asghar Ali Khan . It seems to me, therefore, to follow that questions as to delivery of possession to a stranger purchaser cannot be said to relate to execution, discharge or satisfaction of the decree.

26. Though, as observed already, there appears to be no case in this Court in which the question can be said to have been considered in relation to a stranger auction-purchaser, the Calcutta High Court, which takes the same view as this Court as regards a decree-holder purchaser, has recognised this well-marked distinction between a decree-holder purchasing property in execution of his own decree and a stranger auction-purchaser, and has consistently refused to apply Section 47 to a case where the latter seeks delivery of possession of the property. It is enough in this connection to refer to the observation of Chakravarti, J., in Kailash Chandra Tarapdar v. Gopal Chandra Poddar I.L.R.(1926)Cal. 781

So far as this question is concerned, I think there is a long series of decisions of this Court in which the distinction between the decree-holder auction-purchaser and a third party auction-purchaser has been well maintained.

27. Similarly in Bombay, when the prevailing view as regards a decree-holder purchaser was the same as in Madras, the case of a stranger purchaser was held to be distinguishable. (See Ramchandra Vithal v. Gajanan Narayan I.L.R.(1919)Bom. 352 For these reasons I hold that the question of delivery of possession to a stranger auction-purchaser does not relate to the execution, discharge or satisfaction of the decree' within the meaning of Section 47 of the Code of Civil Procedure.

28. Though this view renders unnecessary the consideration of the further point, also involved in the first question referred, as to whether a stranger auction-purchaser is a representative of the decree-holder or of the judgment-debtor within the meaning of Section 47, as I consider that in a case like this he is to be regarded as the representative of the decree-holder, I shall briefly indicate the grounds on which I base my opinion. The question is by no means free from difficulty, as can be seen from the numerous conflicting decisions upon it, and it is not without regret that I differ from my Lord, the Chief Justice and my learned brothers whose opinion, I need hardly say, I have respectfully considered.

29. The answer, which, in my opinion, is the right one, cannot be put more tersely than in the words of the learned Judges in Krishnabhupati Devu v. Vikrama Devu I.L.R.(1894)Mad. 13

A purchaser in a Court sale represents the judgment-debtor to the extent of such right, title and interest as he had in the property purchased at the date of sale, and represents the execution creditor, in so far as he had a right to bring such right, title and interest to sale in satisfaction of his decree.

30. Whether in a particular case he represents the one or the other depends (as observed by Abdur Rahim, O. C. J., in Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 upon the nature of the question raised and who the contesting party is. In the present case, having regard to the nature of the dispute which relates to the superior title claimed by the appellant under a Court sale as against respondents 1 to 3 who have purchased the property under a private sale from the judgment-debtor's widow pending attachment, it seems to me that the appellant can and should be regarded as the representative of the decree-holder. The position is this : The judgment-debtor having already sold the property to respondents 1 to 3, the appellant who purchased only the right, title and interest of the judgment-debtor, at the Court sale would get nothing under the sale but for the protection afforded by Section 64 of the Code of Civil Procedure to a decree-holder executing his decree. That section, it will be observed, does not render an alienation pending attachment void against all persons and for all purposes, but only against a 'claim enforceable under the attachment', that is, against the decree-holder's right to bring the property to sale under his attachment unaffected by any alienation by the judgment-debtor subsequent to such attachment. (See the observations of the Privy Council in Dinendronath Sannyal v. Ramcoomar Ghose , on Section 240 of the Code of Civil Procedure of 1859 which was in even wider terms than Section 64.) The appellant cannot therefore claim to treat the purchase of respondents 1 to 3 as a nullity except by invoking this right of the decree-holder under Section 64 of the Code of Civil Procedure, and, to this extent and for this purpose, the appellant can and should, in my opinion, be treated as claiming under or representing the decree-holder.

31. Now, the term 'representative' is not defined in the Code. It has been held that it is a term of wider import than 'legal representative' as defined in Section 2(11) of the Code and means 'a representative in interest'. (See Ishan Chunder Sirkar v. Beni Madhub Sirkar I.L.R.(1896)Cal. 62 Does it, however, necessarily import, as a condition of its application, a transmission of interest in property, or does it merely connote standing in the place of another for 'the purpose of deriving some right or advantage from him. The latter is undoubtedly the ordinary meaning of the term and it is commonly used in a variety of contexts which do not involve the idea of any interest in property passing. In the absence of any indication in Section 47 that the term is used in a more restricted sense, there seems to my mind to be no reason why it should not be understood in its ordinary meaning referred to above. Indeed, there is authority for the view that even the expression 'legal representative' notwithstanding the terms of its definition referring to the devolution of an estate, can appropriately be applied to cases where there is and can be no transmission of interest in property. Dealing with the claim of a remoter reversioner to be substituted in the place of the deceased presumptive reversioner who had brought a suit for a declaration that an adoption made by a widow was invalid, their Lordships observed in Venkatanarayana v. Subbammal (1915) 28 M.L.J. 535 : L.R. 42 IndAp 125 : I.L.R. 38 Mad. 406 :

The phraseology of Sub-section (11), in their Lordships' opinion, is fairly open to the contention that the suit was brought by the deceased plaintiff as representing, in his reversionary right, the estate of the last male owner, and that on his death such right devolved on the petitioner.

(Italics mine).

32. It is, of course, plain that the right here referred to is not an interest in property as a reversioner, presumptive or remote, has only a spes successions. I am therefore of opinion that the term 'representative' in Section 47 of the Code of Civil Procedure should be understood as merely referring to one who stands in the shoes of another--to use an expression familiar in legal parlance--and as meaning more or less the same thing as the expression 'claiming under' in other sections of the Code, for example, Sections 11 and 146.

33. The conclusion that a stranger auction-purchaser should, in certain circumstances, be regarded as representing and claiming under the decree-holder who brought the property to sale derives support from decisions on closely analogous subjects, in the wider perspective of which the question now under consideration should, as it seems to me, be viewed. In the well-known case in Sarat Chunder Dey v. Gopal Chunder Laha , the question arose whether a purchaser in execution of a mortgage decree obtained by a mortgagee from a person who had no title to the property but whose mortgage had to be upheld as valid by estoppel against the true owner, could avail himself of such estoppel in a question with a private purchaser from the true owner even though the auction-purchaser was fully aware, at the time of his purchase, that the mortgagor had no title to the property. Their Lordships observed at page 215:

And their Lordships must further observe that, as the mortgage was effectual as a valid title to Kalimuddin, the lender, under which in default of payment of the money lent, he was entitled to sell the property, it follows that any purchaser from him under a sale regularly carried out would acquire a valid title to the property, even though he were fully aware of all the circumstances which had attended the execution of the hiba and that it had been originally invalid.

34. It was, no doubt, a case of an auction-purchaser in execution of a mortgage decree and it has been suggested in some decisions that such a purchaser derives the rights of both the mortgagor and the mortgagee and can thus be regarded as the representative of the decree-holder also. Assuming, that such a distinction is valid (as to which, however, see the observations in Jainulabdin Sahib v. Krishna Chettiar : AIR1921Mad420 , I am unable to read the decision of their Lordships as proceeding upon any such narrow ground. Their reasoning, as is clear from the passage quoted above, was that the mortgagee-decree-holder was entitled, by virtue of the estoppel, to sell the property validly as against the true owner and that, therefore, the purchaser at the sale in enforcement of that right was really purchasing the property 'from him', and thus acquired a good title, by the same estoppel, against the true owner although he (the purchaser) was actually aware of the circumstances. In other words, their Lordships regarded the execution purchaser as one claiming under or representing the decree-holder, in so far as the latter had the right to sell the property validly through Court against the true owner in satisfaction of his decree. The principle is, to my mind, equally applicable to an auction-purchaser in execution of a money decree where the decree-holder has also a right to bring the property to sale, by virtue of his attachment and the operation of Section 64, unaffected by the title having become vested in an alienee from the judgment-debtor before the execution sale.

35. In this connection I may refer to the distinction pointed out by their Lordships of the Privy Council between a private sale and an execution sale. Their Lordships observed:

In the former the price is fixed by the vendor and purchaser alone; in the latter the sale must be made by public auction conducted by a public officer of which notice must be given as directed by the Act, and at which the public are entitled to bid. Under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor. Under the latter, the purchaser, notwithstanding he merely acquires the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor, and freed from all alienations or incumbrances effected by him subsequently to the attachment of the property sold in execution'. (See Dinendronath Sanyal v. Ramcoomar Ghose (1880) L.R. 8 I. A. 65 : I.L.R. 7 Cal. 107 )

36. These observations and the remark in Sarat Chunder Dey v. Gopal Chunder Laha , that the auction-purchaser was purchasing the property from the mortgagee in so far as the latter was seeking to enforce his right to sell through Court in the mortgage suit, show the existence of what has been called the 'privity in law' between the decree-holder and the auction-purchaser.

37. The decision in Krishnabhupathi Devu v. Vikrama Devu I.L.R.(1894)Mad. 13, furnishes another illustration of circumstances where a stranger auction-purchaser in execution of a money decree can appropriately be held to be the representative of the decree-holder. The defendant in that case had attached certain properties of his judgment-debtor In execution of a money decree. The plaintiff intervened with a claim based upon a gift deed executed in his favour by the judgment-debtor but his claim Was disallowed. He thereupon sued the decree-holder to have his title recognised and the property released from attachment and the suit was dismissed on the ground that the gift was inoperative. The property was subsequently brought to sale on account of that decree as well as three other decrees held by the same decree-holder, and it was purchased by a third party. The plaintiff then brought the suit (out of which the case in Krishnabhupathi Devu v. Vikrama Devu I.L.R.(1894)Mad. 13, arose) against this auction-purchaser for a declaration of the validity of the same gift which he failed to obtain in his earlier suit against the decree-holder, and the question arose whether the finding in the previous suit was res judicata. The learned Judges, Muttuswami Aiyar and Best, JJ., held that it was and observed at page I8:

It is a well-known principle that a purchaser at a Court sale represents the judgment-debtor to the extent of such right, title and interest as he had in the property purchased at the date of sale, and represents the execution?creditor, in so far as he had a right to bring such right, title and interest to sale in satisfaction of his decree. Hence it follows that the purchaser is a party claiming in this case under the execution creditor, Ramamurthi, within the meaning of Section 13, and the Judge has apparently overlooked the privity in law which exists between the two. The decision in Sarat Chunder Dey v. Gopal Chunder Laha , is a clear authority for the proposition that when the plea of estoppel is available to a decree-holder, it is likewise available to the purchaser at the execution sale as his representative or as one claiming under him.

38. The learned Judges no doubt proceeded to distinguish certain cases as decisions relating to Section 244 of the Code of Civil Procedure (corresponding to Section 47), but I respectfully share the inability of Abdur Rahim, O. C. J., in Veyindramuthu Pillai v. Maya Nadan (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 , to see why the principle should not be applied to Section 47 of the Code as well. It is open to this Bench, of course, to say that the decision in Krishnabhupathi Devu v. Vikrama Devu I.L.R.(1894)Mad. 13 is wrong, but it seems to me, if I may say so, to be unquestionably good sense and good law; for, it would 'be an inconvenient state of the law, if it were found necessary, after a decree-holder establishes his right to sell certain properties as belonging to his judgment-debtor and free of the claim put forward by a third party, in a litigation which may extend over years and pass through several Courts, that the . execution purchaser has to go through the same process all over again against the same party in respect of the same claim.

39. On the other hand, the decision in Srinivasa Aiyangar v. Vellayyan Ambalam : AIR1926Mad966 shows that it might not be correct, in certain circumstances and for certain purposes, to hold that an execution purchaser is a representative of the judgment-debtor, though he gets the right, title and interest of the latter at the execution sale. A certain property was purchased by the plaintiff in that case in execution of a money decree. It had been attached before the Court sale, and during the pendency of the attachment, there was an usufructuary mortgage by the judgment-debtor to the defendant. Nearly 27 years after the purchase, the purchaser brought the suit for redeeming the mortgage on the ground that the defendant was only a mortgagee and that he (the purchaser) being the owner of the equity of redemption, was entitled to redeem the property. The purchaser, it will be noted, did not claim to treat the mortgage as void, though he was entitled to do so, as it was effected pending attachment. He was content, evidently in order to get over the bar of limitation, to take up the position that it was a valid mortgage and that he purchased only the equity of redemption. In other words, he asked to be treated as one standing in the shoes of the judgment-debtor, that is, as his representative, and to be allowed to redeem the property on that footing, even as the judgment-debtor would be entitled to do if he continued to be the owner. But the Court rejected his prayer and dismissed the suit, holding, on the strength of the observations of the Privy Council in Dinendronath Sanyal v. Ramcoomar Ghose , that there was no privity between him as the execution purchaser and the defendant as the mortgagee from the judgment-debtor.

40. For these reasons, I am inclined to hold that the appellant in this case is to be regarded as the representative of the decree-holder within the meaning of Section 47 of the Code of Civil Procedure.

41. On the second question referred, I agree with the judgment of my Lord, the Chief Justice, which I have had the advantage of reading and have nothing material to add.


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