Bhimal Das and others vs Musst. Ganesha koer

In this case the decree-holder having purchased property in execution of his decree applied for an order for possession under sec. 318 of the Civil Procedure Code. The Subordinate Judge refused his application, and on appeal to the District Judge, it was held that no appeal lay. The question before us is whether an appeal lay to the District Judge.

There is no doubt that the fact that the judgment-creditor was himself the purchaser makes no difference in the determination of this question in this case. No appeal is given by sec, 588, but it has been argued that the order was made under sec. 244 of the Civil Procedure Code, and is therefore appealable as a decree.

We are of opinion that it is not. The question does not, in our opinion, relate to the "execution, dischage or satisfaction of the decree" no order made on it can in any way affect the decree. The decree has already been executed with regard to the particular property, and has been discharged or satisfied to the extent of the purchase-money paid therefor.

We are supported in this view by a decision of Mr. Justice Banerjee of the Allahabad High Court in the case of Ghulam Shabbir v. Dwarka Prosad ILR 18 All. 36.

On the other hand, we have been referred to a decision of a bench of the Madras High Court in the case of Muttia v. Appasmi ILR 13 Mad. 504, with which we regret to be unable to concur, if it affects this question. In that case, the judgment debtors set up an agreement between him, and the applicant in bar of the application. It does not appear from the report what that agreement was. It may well be that it was one which operated to affect the execution of the decree. This appeal is dismissed with costs. Pleader''s fee, two gold-mohurs.