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Annada Prasanna Sen Vs. Somoruddi Mirdha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.839
AppellantAnnada Prasanna Sen
RespondentSomoruddi Mirdha
Cases Referred and Pran Krishna v. Juramoni
Excerpt:
limitation act (ix of 1908), schedule i, article 182(5) - execution of decree--decree-holder auction-purchaser, application by, to be put in possession, whether step-in-aid of execution. - .....in execution proceedings, his contention being that the application for execution by the decree-holder is barred by limitation. the decision of this appeal depends entirely on the answer to the question whether an application by a decree-holder to be put in possession of property purchased by him at a sale in execution of his decree, is an application to the court to take a step-in-aid of execution within the meaning of clause 5 of article 182 of the first schedule of the indian limitation act, 1908. both the lower courts, relying on the decisions of this court in sariatoolla v. raj kumar 27 c. 709 : 4 c.w.n. 681 and pran krishna v. juramoni 1 ind. cas. 430 : 13 c.w.n. 694 have answered the question in the affirmative. for the appellant it is contended that an application by a.....
Judgment:

Newbould, J.

1. This is an appeal by the judgment-debtor in execution proceedings, his contention being that the application for execution by the decree-holder is barred by limitation. The decision of this appeal depends entirely on the answer to the question whether an application by a decree-holder to be put in possession of property purchased by him at a sale in execution of his decree, is an application to the Court to take a step-in-aid of execution within the meaning of Clause 5 of Article 182 of the First Schedule of the Indian Limitation Act, 1908. Both the lower Courts, relying on the decisions of this Court in Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Pran Krishna v. Juramoni 1 Ind. Cas. 430 : 13 C.W.N. 694 have answered the question in the affirmative. For the appellant it is contended that an application by a decree-holder to be put in possession of property after a sale by the Court is made by him in his capacity as auction-purchaser and not as decree-holder and, therefore, is not an application for a step in-aid of execution. It is urged that on the sale of the property the execution proceedings come to an end, and consequently the decree holder, when applying to be put in possession, is not executing his decree. It is also pointed out that Rules 95 and 95 of Order XXI of the Code of Civil Procedure require an application for delivery of possession to be made by the 'purchaser.' Our attention has also been drawn to Article 180 of the First Schedule to the Indian Limitation Act, 1903. The wording of this Article adds nothing to the argument based on the wording of Rules 95 and 96 of Order XXI, since the former would naturally be in the same terms as the latter. In support of the appellant's contention the cases Panchanan v. Nrisingha Prosad Roy 6 Ind. Cas. 264 : 11 C.L.J. 356 and Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 are cited. It is contended, that these decisions are at variance with the decisions on which the lower Courts have relied and we are asked to refer this appeal to a Full Bench for decision of this question. In my opinion we should follow the decisions in the cases of Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Iran Krishna v. Juramoni 1 Ind. Cas. 430 : 18 C.W.N. 694. Those cases are dearly in point and are decisions on the actual questions that arise in this appeal. In both cases on which the appellant relies the point for decision was different, namely, whether an application for confirmation of sale was a step-in-aid of execution. It is true that there are remarks in the judgments in these cases that such an application cannot be a step in-aid of execution because the application was made on behalf of the decree holder as auction-purchaser. But in the case of Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 the learned Judges, after remarking that an application made not by the decree-holder as such but by the auction-purchaser could hardly be said to be an application in aid of execution, proceed to give another and entirely different reason for dismissing the appeal. In the other case Panchanan v. Nrisingha Prosad Roy 6 Ind. Cas. 264 : 11 C.L.J. 356 the learned Judges, after pointing out that the application was made on behalf of the decree holder as auction-purchaser, add that no authority had been cited in support of the contention that such an application was a step-in-aid of execution. That case was decided in 1893. Had the question at issue been the same as in the present case, different considerations would have arisen and it seems to me quite possible that so much importance might not have been given to the difference between an application by the decree-holder as such and by him in his capacity of auction-purchaser. Though the argument based on this difference is plausible, it does not appear to me to be sound. Even though the decree-holder has become the auction purchaser, he has obtained no benefit from his decree until he gets possession of the property purchased by him and an application to be put in possession is, therefore, an application for a step in-aid of execution of his decree. This is the view that has been also taken by other High Courts in India: Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117; Lakshmanan Chattiar v. Kannanmal 21 M. 185 Sadashiv Mahadu v. Narayan Vithal 11 Ind. Cas. 987 : 35 B. 452 at p. 460 : 13 Bom. L.R. 661.

2. For these reasons and with this weight of authority behind it I think the decision of the lower Appellate Court is right and should be upheld. The apparent differences of opinion expressed by the learned Judges in the cases on which the appellant relies are not such as to require a reference to a Full Bench.

3. As my learned brother agrees with me as to the final order, though on other reasons, this appeal must stand dismissed with costs.

4. The hearing fee is assessed at three gold mohurs.

Cuming, J.

5. This appeal arises out of an application for execution of a decree, and the short point for decision is whether an application for delivery of possession by the decree holder or auction-purchaser at a pale held in execution of the decree is a step-in-aid of execution.

6. It would appear that the previous application for execution was made on 29th May 1913. The property was sold on 29th November 1913, and the sale confirmed on 7th September 1914. On 18th November 1914, the decree holder as auction purchaser applied for delivery of possession. The present application for execution is made on 11th April 1917.

7. Both the lower Courts have held that the application for confirmation of the sale is not a step in-aid of execution, but they have held that the application for delivery of possession by the decree holder as auction-purchaser is a step-in-aid of execution and hence the present application is within time.

8. The appellant contends that neither the application for confirmation of sale nor the application for delivery of possession by the auction purchaser decree-holder are steps-in-aid of execution. The respondent has not contended that the application for confirmation of the sale is a step-in aid of. execution, but he contends that the application for delivery of possession is such a step and so limitation in this case has been saved.

9. The appellant has relied on two rulings of this Court in support of his contention, the ease of Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 and the case of Panchanan v. Nrisingha Prosad Ray 6 Ind. Cas. 264 : 11 C.L.J. 356. The respondent has relied on the two rulings Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Pran Krishna v. Juramoni 1 Ind. Cas. 430 : 18 C.W.N. 694. The respondent has urged that the two cases cited by him are directly in point, while in the cases relied on by the appellant the question to be decided was whether an application for confirmation of the sale was a step in aid of execution. No doubt this is correct. But it seems to me that the principle which the learned Judges laid down in deciding the case of Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 although strictly speaking they did not rely on it for the decision of the case, would apply to the case of an application for delivery of possession. Ghose and Geidt. JJ., states--'Referring to the application itself, in this case we find it was really made by the decree-holder in his capacity as purchaser of the plot in question. It was indeed made not by the decree-holder as such, but by the auction-purchaser and viewing it in this light it could hardly be said that it was an application in aid of execution of the decree.'

10. The principle underlying these remarks was that the application to be a step in-aid of execution must be one by the decree-holder in his capacity of decree-holder, and not in his capacity of auction purchaser. If we apply that principle to the present case, it would be clear that application by the decree-holder as auction-purchaser for delivery of possession would not be a step-in-aid of execution.

11. With the greatest respect to the learned Judges who decided the cases of Saritoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Pran Krishna.v. Juramoni 1 Ind. Cas. 430 : 18 C.W.N. 694 it seems to me that this is the correct principle and that the application by an auction-purchaser for delivery of possession, even though he be the decree-holder, is not a step-in aid of execution. The execution-of the decree is complete when the property is sold and the money paid. I am fortified in the conclusions by the remarks of the learned Judges in the case of Ananda Mohan Boy v. Hira Sundari 23 C. 196 where they state: ' It seems to us that when the sale of the property attached in execution has been completed and the purchase-money paid into Court, nothing more remains to be done in respect of the execution of the decree as against that property and no application as regards the purchase money, either to draw it out of Court or set it off against the decree when the decree-holder is himself the purchaser, can properly be said to be an application to the Court to take some step in execution of the decree. '

12. Even though the auction-purchaser was unable to get possession, that would not entitle the decree holder to take out further execution for that portion of his money represented by the property he had bought.

13. It may no doubt be argued that to apply for delivery of possession is to give effect to the sale which is the result of the decree. It does not seem, however, to me that giving effect to the result of the execution of the decree is the same thing as executing the decree.

14. I am of opinion that all steps in execution of a decree which can save limitation must be taken by the decree-holder as decree holder and not as auction-purchaser.

15. In my opinion the two rulings Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Pran Krishna v. Juramoni 1 Ind. Cas. 430 : 18 C.W.N. 694 were wrongly decided. As my learned brother is of the opinion that he should follow the two rulings already referred to which undoubtedly are directly in point, the appeal will be dismissed.


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