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Panchanan Pal Minor by His Mother, Srimutty Basanta Kumari Dasi Vs. Sukhamoy Santra and Mokham Lal Adak and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal85(1),50Ind.Cas.299
AppellantPanchanan Pal Minor by His Mother, Srimutty Basanta Kumari Dasi
RespondentSukhamoy Santra and Mokham Lal Adak and ors.
Cases ReferredHaji Abdul Gani v. Raja Ram
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 95 - execution of decree--decree-holder auction-purchaser, suit by, for recovery of property purchased, maintainability of--section 47, applicability of. - .....of civil procedure. the cases of this court have not been all uniform. but a strong balance of judicial opinion adopting the view that the auction purchaser, even when he is the decree holder himself, is not bound under the provisions of order xxi, rule 95, to apply under section 47 but he may maintain a suit like the present. the matter has been considered quite recently by this court and also by the patna high court. a convenient summary of the decisions of this court is given in the judgment of a full bench of the patna high court in the case of haji abdul gani v. raja ram 35 ind. cas. 468 : 20 c.w.n. 829 : 1 p.l.j. 232 : 3 p.l.w. 62 (f.b.). i adopted on another occasion the conclusion arrived at by the full bench of the patna high court and i am of opinion, therefore, that the.....
Judgment:

Ernest Fletcher, J.

1. The only point raised in this appeal is whether the present suit is maintainable. The suit is brought by the decree-holder, who himself purchased in execution, to recover possession of the property purchased. The answer is that this application ought to have been made under the terms of Order XXI, Rule 95, read with Section 47 of the Code of Civil Procedure. The cases of this Court have not been all uniform. But a strong balance of judicial opinion adopting the view that the auction purchaser, even when he is the decree holder himself, is not bound under the provisions of Order XXI, Rule 95, to apply under Section 47 but he may maintain a suit like the present. The matter has been considered quite recently by this Court and also by the Patna High Court. A convenient summary of the decisions of this Court is given in the judgment of a Full Bench of the Patna High Court in the case of Haji Abdul Gani v. Raja Ram 35 Ind. Cas. 468 : 20 C.W.N. 829 : 1 P.L.J. 232 : 3 P.L.W. 62 (F.B.). I adopted on another occasion the conclusion arrived at by the Full Bench of the Patna High Court and I am of opinion, therefore, that the present suit is maintainable. In that view the present appeal fails and must stand dismissed with costs.

Walmsley, J.

2. I agree.


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