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Sasibhushan Mookerjee and anr. Vs. Radhanath Bose - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.267
AppellantSasibhushan Mookerjee and anr.
RespondentRadhanath Bose
Cases ReferredBrajo Nath v. Juggeswar
Excerpt:
civil procedure code (act v of 1908), sections 47 - revoking order for delivery of possession to execution purchaser, whether an order within section 47 of the code--inherent power of court, where to be exercised--jurisdiction. - .....the 27th november 1902. a payment of rs. 200 was made in part satisfaction of the decree, and the decree-holder took out execution for the balance. the mortgaged property was sold on the 5th march 1903 and was purchased by the decree-holder for rs. 300. the sale was confirmed on the 14th april 1903 and the application for execution was dismissed on part satisfaction, as the decree-holder took no further steps. on the 21st june 1912 sasibhusan mookerjee, now petitioner before this court, applied to the court for a certificate of sale. he alleged that his father krishnadhan mookerjee, who had obtained the mortgage-decree and purchased the property in execution, had died and had left him as his sole representative. on the 22nd november 1912 the munsif, babu nripendra nath guha, ordered the.....
Judgment:

1. We are invited in this Rule to set aside an order by which the Court of first instance has, under section. 151 of the Civil Procedure Code, 1908, recalled an order previously made for delivery of possession of immoveable property to a purchaser at an execution sale. The events, which have led up to this order, are matters, of record and may be briefly recited. On the 25th May 1902, one Krishnadhan, Mookerjee obtained a mortgage-decree against Radhanath Bose, now opposite party in this Rule. The decree was for Rs. 589 and was made absolute on the 27th November 1902. A payment of Rs. 200 was made in part satisfaction of the decree, and the decree-holder took out execution for the balance. The mortgaged property was sold on the 5th March 1903 and was purchased by the decree-holder for Rs. 300. The sale was confirmed on the 14th April 1903 and the application for execution was dismissed on part satisfaction, as the decree-holder took no further steps. On the 21st June 1912 Sasibhusan Mookerjee, now petitioner before this Court, applied to the Court for a certificate of sale. He alleged that his father Krishnadhan Mookerjee, who had obtained the mortgage-decree and purchased the property in execution, had died and had left him as his sole representative. On the 22nd November 1912 the Munsif, Babu Nripendra Nath Guha, ordered the issue of the sale certificate, and five days later the document, duly drawn up and signed, was made over to the applicant. On the 16th February 1913 Sasibhusan Mookerjee conveyed the property to Hemangini Dassi for a consideration of Rs. 300. On the 24th April 1913 Sasibhusan Mookerjee and Hemangini Dassi made a joint application for delivery of possession of the land sold; the application 'was jointly made, obviously with a view to avoid any question as to the reality of the conveyance. On the same date the Court called for the record, and two days later Babu Nripendra Nath Guha, Munsif, ordered notice to issue on the judgment-debtor to show cause why the petitioner should not be substituted in the record in place of the auction-purchaser, Krishnadhan Mookerjee. Notice was issued accordingly; and on the 3rd May 1913 Babu Nripendra Nath Guha as Munsif, recorded in the ordersheet that notice had been served, made an order for substitution and directed writ of delivery of possession to issue. On the 10th May 1913 the writ was executed, and possession was delivered to the petitioners. On the 15th May an entry was made in the order-sheet that possession had been delivered and that the case had been disposed of. On the 30th May 1913 Radha Nath Basu, the judgment-debtor, applied for review of the orders of the 24th and 26th April and 3rd and 15th May 1913. This application was made to Babu Nripendra Nath Guha, Munsif, who had returned to the station on transfer of Babu Saroj Kanta Banerjee. The application for review attacked the orders as fraudulently obtained on the basis of a fraudulent execution sale brought about by the decree-holder without notice to the judgment-debtor. On the 5th June 1913 Babu Nripendra Nath Guha refused the application for review on the ground that in view of Order XLVIII, Rule 2, of Code of 1908, he was not competent to entertain an application for review of orders made by his predecessor. Two days later the judgment-debtor applied to Babu Nripendra Nath Guha to consider the propriety of the orders of his predecessor in the exercise of his inherent powers under Section 151 of the Code. The execution-purchaser and his transferee protested that the matter could not be re-opened in this way. No heed was paid to this objection, and on the 9th September 1913 Babu Nripendra Nath Guha cancelled the order for delivery of possession made by his predecessor, on the ground that the application was manifestly barred by limitation as it had not been presented within three years of the date of confirmation of the sale. We are now invited by the execution-purchaser and his transferee to hold that the last order of Babu Nripendra Nath Guha, by which he has cancelled the order of his predecessor for delivery of possession, was made without jurisdiction. A preliminary objection has been taken on behalf of the judgment-debtor that the execution-purchaser has misconceived his remedy, that the order of the Munsif, whether rightly or wrongly made, falls within the scope of Section 47 of the Code and that it should have been challenged, if the purchaser was so advised, by way of an appeal to the District Judge. We are of opinion that the order of the Munsif was not open to appeal and that the preliminary objection must be overruled.

2. It was observed by this Court in the case of Raghubar Dayal v. Jadu Nandan 13 Ind. Cas. 365 : 15 C.L.J. 89 : 16 C.W.N. 736, following Joytara v. Pran Krishna 7 Ind. Cas. 769 : 13 C.L.J. 257 : 15 C.W.N. 512 that the answer to the question, whether an order in execution proceedings is within the scope of Section 47, depends upon its nature and contents. If it decides a question relating to the execution, satisfaction or discharge of the decree and if the decision has been given between the parties to the suit or their representatives-in-interest the order falls within the scope of Section 47, is, consequently, a decree within the meaning of Section 2 and is open to appeal under Section 96. Let us test the order in the present case from this two-fold point of view. Does it decide a question relating to the execution, satisfaction or discharge of a mortgage-decree? The answer must plainly be in the negative. The mortgage-decree has been executed; the sale has taken place and has become absolute. The decree has been declared to have been satisfied in part. The position as it stood on the 14th April 1903, when the sale was confirmed and the application for execution was dismissed on part satisfaction, would not be affected in the remotest degree by the fate of the application by the purchaser for delivery of possession of the property sold to him. If the application was granted, it could not give greater validity to the order for confirmation of sale than what it possess-ed. On the other hand, if the application for delivery of possession was refused, it could not invalidate the sale or nullify the part satisfaction of the decree. In our opinion, it is impossible to hold that the order for delivery of possession to the purchaser in this case is an order relating to execution, discharge or satisfaction of the decree. But let us assume that, by some stretch of language, the order for delivery of possession to the purchaser may be deemed an order relating to execution of the decree. The point still remains whether the question, which arises on the application for delivery of possession, arises between the parties to the mortgage suit or their representatives. It is argued that because the purchaser happened to be the decree-holder, the question which arises between the purchaser and the judgment-debtor may be deemed to arise between the decree-holder and the judgment-debtor. This contention is clearly fallacious, for the two capacities of the petitioner, namely, that of decree-holder and of purchaser, are radically distinct. This distinction was recognised in the case of Nana Kumar Roy v. Golam Chunder Dey 18 C. 422, where it was held that an order under Section 312 of the Code of 1882 for reversal of an execution sale cannot be treated as an order under Section 244 because the decree-holder happens to be the auction-purchaser. It was conversely held in Hira Lal v. Chandra Kanta 26 C. 539 : 3 C.W.N. 493 that if the question really arises between the decree-holder and the judgment-debtor, it does not lose that., character merely because it also affects the auction-purchaser who is a stranger to the suit. It is plain that the judgment-debtor cannot take advantage of the circumstance that the decree-holder is the auction-purchaser with a view to make the question one under Section 47, any more than the execution-purchaser can rely upon his decree-holder character for a similar purpose. It is well settled that when the purchaser is not the decree-holder, a question which may arise in the proceedings for delivery of possession between him and the judgment-debtor, does not fall within the scope of Section 47: Kishori Mohun v. Chunder Nath 14 C. 644, Krishna v. H. Saraswatula 31 M. 177 : 3 M.L.T. 306. When, however, the purchaser happens to be the decree-holder the view has sometime been taken that the question of delivery of possession falls within the scope of Section 47: Madhusudan v. Gobinda 27 C. 34 : 4 C.W.N. 417, Saiatoolla v. Raj Kumur 27 C. 709 : 4 C.W.N. 681, Ram Narain v. Bandi Per shad 31 C. 737, Hari Charan v. Mon Mohan 20 Ind. Cas. 874 : 18 C.W.N. 27 : Kasinatha v. Uthumansa 25 M. 529 : 12 M.L.J. 1. This view has been carried to its logical conclusion, and it has been maintained in Sadashiv v. Narayan 11 Ind. Cas. 987 : 35 B. 452 : 15 Bom.L.R. 661, and Kottayat v. Banian 26 M. 740 : 13 M.L.J. 237 that a decree-holder auction-purchaser must obtain delivery of possession by an application to the execution Court and cannot maintain a suit against the judgment-debtor for recovery of possession. The contrary view is supported by the cases of Bhimal Das v. Ganesha Koer 1 C.W.N. 658 : Mahomed Mosraf v. Habil Mia 6 C.L.J. 749; Jagarnath Marwari v. Kartick Nath 7 C.L.J. 436, and it is worthy of note that in some of the cases where the view first set out has been maintained, the Court has adopted the conclusion with reluctance and hesitation because it felt bound by previous decisions: Kattayat v. Raman 26 M. 740 : 13 M.L.J. 237, Sandhu v. Hussain 28 M. 87 : 14 M.L.J. 474. The cases were elaborately reviewed by a Full Bench of the Allahabad High Court in Musammat Bhagwati v. Banwari Lal 1 Ind. Cas. 416 : 31 A. 82 : 6 A.L.J. 71 : 5 M.L.T. 185, and the principle was affirmed that a decree-holder, whether holding a decree for sale under a mortgage or a simple money-decree, who purchases at a sale held in execution of such decree, property belonging to his judgment-debtor is in the same position as would be any other purchaser at an auction sale held in execution of such decree. We are of opinion that the order we are called upon to consider in the present case does not fall within the scope of Section 47, and could not have been challenged by way of an appeal to the District Judge. We must, consequently, examine whether the Munsif was competent to re-call the order of his predecessor.

3. Rule 2 of Order XLVII of the Code makes it plain that the order of the 3rd May 1913 for delivery of possession made by Babu Saroj Kanta Banerjee could not have been reviewed by his successor, Babu Nripendra Nath Guha, and the latter officer took this view very properly when he dismissed the application for review on the 5th June 1913. But he subsequently yielded to the invitation of the judgment-debtor to grant him relief in the exercise of his inherent power, which he was forbidden to grant by the express provisions of Rule 2 of Order XLVII. The principles which regulate the exercise of inherent power by a Court were explained in the case of Hukum Chand v. Kamalanand Singh 33 C. 927 : 3 C.L.J. 67. It was pointed out that the Code of Civil Procedure binds all Courts so far as it goes; but the Code is not exhaustive and in matters with which it does not deal, the Court will exercise its inherent power to do that justice between the parties which is warranted under the circumstances and which the necessities of the case require. On any point specifically dealt with by the Code, the Court cannot disregard the letter of the enactment according to its true construction, though as the Legislature cannot anticipate and make* express provisions to cover all possible contingencies it is the duty of a Judge to apply the provisions of the law not only to what appears to be regulated expressly thereby but also to all cases to which just application of them may be made and which appears to be comprehended either within the express sense of the law or within the consequences that may be gathered from it: Hurro Chunder v. Shoorodhonee 9 W.R. 402, Panchanan v. Dwarka Nath 3 C.L.J. 29. It would, in our opinion, be a patent misapplication by a Court of Section 151 if it were, in the exercise of its inherent power, to assume jurisdiction to grant a review where it has been expressly forbidden by the Legislature to entertain such application. There is, however, a further objection to the exercise of the inherent power of the Court in the present case. It is well settled that the inherent power of a Court can be invoked only for the attainment of the ends of substantial justice, for the administration of which alone Courts exist. Now, what are the merits of the case before us? The mortgage-decree- holder purchased the property so far back as the 5th March 1903 and the sale was confirmed on the 14th April 1903. Notwithstanding the fact that the judgment-debtor had lost his interest in the property by the execution sale, he continued in possession. The decree-holder obtained a sale certificate and was placed in possession after notice to the judgment-debtor. Though the sale was later on alleged to be fraudulent no steps have been taken to impeach the sale and to have it set aside. Objection is subsequently taken that the application for issue of sale certificate and for delivery of possession were both barred by limitation. We need not investigate whether this objection is or is not well-founded in law; we assume that the objection is well founded. But it is plain, as repeatedly held by this Court, that the sale certificate is merely evidence of title; it does not create title: Tan-tardhari v. Sunder Lal 7 C.L.J. 384, Khobhari v. Ram Prosad 7 C.L.J. 387, Brajo Nath v. Juggeswar 1 Ind. Cas. 62 : 9 C.L.J. 846. Consequently if the execution-purchaser were to sue the judgment-debtor for declaration of title and for recovery of possession at any time within 12 years from the 14th April 1903, when the sale was confirmed and the title vested in the purchaser under Section 316 of the Code of 1882, there would be no answer to the claim, as the purchaser would be entitled to establish his title by evidence independently of the sale certificate. The effect of the order of the Munsif is that the purchaser would be needlessly driven to a suit for possession to which no defence is possible on behalf of the judgment-debtor. This clearly is not a result for the attainment of which a Court should exercise its inherent power.

4. The result is that this Rule is made absolute, the order of the 9th September 1913 discharged and that of the 3rd May 1913 restored. The purchaser will be replaced in possession in execution of the order of this Court. He will also be entitled to his costs throughout these proceedings. We assess the hearing fee in this Court at five gold mohurs.


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