Macpherson and Stevens, JJ.
1. The respondent purchased two jotes at sales in execution of two decrees which she had obtained against Ram Kamal Das for the rent due in respect of them. After obtaining the sale certificates she applied for khas possession as against Ram Kamal's sons who, we must take it, were put on the record as representatives of their deceased father. The sons resisted the application alleging that they had purchased the whole of one and half of the other jote from their father prior to the rent suits, that the respondent had recognised them as tenants, and that they were not bound by the decree to which they were not parties. In support of their contentions they put in the kabalas by which they had purchased the jotes and some other documentary evidence. Both Courts considered that the questions raised could only be decided in a regular suit to be brought by one or other of the parties, and that they could not be decided under Section 244 of the Civil Procedure Code. The Munsif, holding that it was for the respondent to bring such a suit, declined to give her anything more than symbolical possession. The District Judge on the respondent's appeal held that it was for the appellants, Ram Kamal's sons, to bring such a suit, and that in the meantime khas possession must be given to the respondent. These appeals are preferred against this order of the District Judge.
2. Neither Court has definitely decided the questions raised, but if the case comes under Section 244 those questions obviously must be decided under that section and not by separate suit. If the case does not come under Section 244, it is equally obvious that there was no appeal to the District Court, and that there is no second appeal to this Court. We must, therefore, determine whether Section 244 applies.
3. It undoubtedly does apply as regards the parties, for there is on the one side the plaintiff, who is the decree-holder and the auction-purchaser, and on the other the representatives of the judgment-debtor. The fact that they claim the jote not through the judgment-debtor but adversely to him would not prevent the operation of Section 244 see Punchanun Bundopadhya v. Rabia Bibi (1890) I.L.R., 17 Cal, 711. The plaintiff is also none the less a party to the suit because she happens to be the auction-purchaser. Is then the question raised one relating to the execution of the decree? That question is whether the jotes sold at the execution sale belonged to the judgment-debtor or to the persons who now represent the judgment-debtor, and from whom it is sought to obtain possession with the aid of the Court. There is also another question involved, and that is whether, having regard to the provisions of the Tenancy Act (if those provisions apply) the jotes were not properly sold in execution of the decrees obtained against the appellants' father so as to bind the appellants even if the jotes do belong to them.
4. As the appellants do not claim through or under their father, the sale certificate has not the effect of vesting the jotes in the purchaser as against them, but the purchaser is entitled to ask the Court to put her in possession of what she has purchased, and, subject to the provisions of Sections 317 and 318, and Sections 328 to 335 relating to resistance to execution, the Court is bound to give her possession of some kind. Proceedings for the delivery of possession are, we think, proceedings in execution of the decree. They undoubtedly are so when the decree is for possession, as the proceedings are necessary in order to give effect to the decree, and any question which arose as to the land which the decree-holder was entitled to get under the decree would certainly be a question relating to the execution of the decree. The matter is not so clear when possession has to be given of land which has been sold in execution of a decree. It may be said that the decree is fully executed when the sale is confirmed, and that questions afterwards arising between the auction purchasers and the judgment-debtor or others in connection with the delivery of possession of the property sold are not questions affecting the execution of the decree. They may not affect it in the sense of impeaching the sale, but when the law provides for the delivery of possession to the auction-purchaser by proceedings which form a part of the proceedings in connection with the execution of the decree, any question arising as to the kind of possession to which he is entitled, is, we consider, a question relating to the execution of the decree within the meaning of Section 244. Here the respondent, the decree-holder, says the land is in the possession of the appellants, who are the representatives of the judgment-debtor, and that she is entitled to get as against them khas possession. The appellants do not deny that the land is in their actual possession, and that they are the representatives of the judgment-debtor, but they say they are not bound by the decree to which they are not parties, and that the land is their own and not that of the person whom they represent. Both as regards the parties and the subject-matter of the dispute, the case comes, we consider, under Section 244, and must be decided under that section and not by a separate suit. If such a suit was brought it would certainly be open to the objection, whatever the Court may now say, that it was not maintainable.
5. We hold that an appeal does lie and we set aside the decision of both Courts. The case must go back to the first Court to be dealt with and disposed of under Section 244. The parties will be at liberty to adduce additional evidence, and the costs of this Court, and of the Lower Appellate Court, will abide the result.