Dwarka Prasad and Others vs Ghulam Shabbir

Banerji, J.—A preliminary objection has been taken to the hearing of this appeal on the ground that no appeal lies. It appears that the

respondents obtained a decree for sale against the appellant, and in execution of that decree purchased the mortgaged property. They have

obtained certificates of sale and have applied u/s 319 of the CPC for delivery of possession. The Court below has ordered possession to be

delivered, and it is in respect of that order that this appeal has been brought. Section 588 of the CPC does not allow an appeal from an order u/s

Mr. Madho Prasad has contended that the order made by the Court below must be regarded as a decree u/s 244, the parties being the

decree-holders and the judgment-debtor. This contention is in my opinion unsound. The decree-holders, as such, were not entitled to obtain

delivery of possession. It was only by reason of their having purchased the property of the judgment-debtor at auction that they could apply for

possession, and it was only in their character as auction-purchasers that they did make their application for possession. Their status as auction-

purchasers was distinct from their character as decree-holders and as observed in the judgment of the Full Bench in Sabhajit v. Sri Gopal ILR 17

All. 222 it was a pure accident that the decree-holders were also auction-purchasers. As I have said above, as decree-holders, the respondents

could not claim possession, and therefore their application for delivery of possession was not, and could not be, one u/s 244. It purported to have

been made u/s 319, and that was the only section under which it could have been made. As no appeal lies from an order u/s 319, the preliminary

objection must prevail and this appeal must be, and it is, dismissed with costs.