Mohammed Moideen and Others vs Lakshmi Narayanan

Chandrasekhara Menon, J.—In O.S. No. 114 of 1967 on the file of the Subordinate Judge of Palghat, the Respondent had obtained a decree for sale of some properties belonging to the Defendants in the suit, the present revision Petitioners. In pursuance of the decree, the properties were sold in court auction on 1st March 1976, when the decree holder purchased the same after getting due permission from the Court. The sale was confirmed on 18th December 1976.

In the meanwhile, the third Defendant-Petitioner took steps to set aside the decree. That had come up to this Court in C.M.A. No. C8 of 1977 which appeal was dismissed on 19th February 1979. When the appeal was pending, this Court had granted a stay of further proceedings, consequent on the sale on condition of deposit of Rs. 6,00O towards the decree debt which condition had been complied with. When the CM.A. Was pending, an amount of Rs. 1960 was also deposited towards the income of the properties.

After the confirmation of the sale and the issuance of the sale certificate by which the entire decree debt had been discharged, the Respondent filed E.A. 230 of 1979 praying that he may be allowed to draw the amount of Rs. 7,960 deposited by the revision prisoners and for adjust rent of the amount towards the profits of the properly due to him. The basis of this prater can best be given in the words of the Respondent himself as set out in the affidavit in support of the petition:

The property item No. 2 in the sale sannad has not been delivered to me and being shops in the bazar the present rent can be easily estimated at Rs. 300 per month. I am entitled to get the profits from the property from 1st Match 1970, the sale date. At that rate I am to get Rs. 3,600 yearly from the Defendants. The 3rd Defendant The deposited Rs. 6,000 and also 1 here is an amount of Rs. 1,900 in court deposit in favour of the Defendants. I may be allowed an adjustment of that amount towards the profits I am entitled to get as stated above.

A counter statement was filed to this application by Petitioners 1 to 3 herein where they objected to the adjustment prayed for. According to them, even in the order of the High Court in the CM. A. there is no direct ion to pay any profits of the property to the decree holder. There was no issue raised in the suit or in any subsequent proceedings in the E.P.E.P. No. 118 of 1968-regarding the realisation of profits from the properties sold.

The court below allowed the petition. It would appear from the order that was passed in the matter that the main objection raised before the Court was that the decree holder is not entitled to recover the profits of the property, afire the sale and confirmation of the sale, by means of the application of the nature filed in the proceedings and the remedy, if any, open to him is by way of a suit. The decree holder in his application had invoked only Section 151. CPC though in the argument before the court below his counsel had relied on Section 47, Code of Civil Procedure. The lower court purporting to follow Ramanna v. Nallaparaju AIR 1956 S.C. 8, held in favor of the decree holder Applicant. It was said that the expression "relating to the execution" in Section 47, CPC would apply as well to a dispute arising in relation to the execution of a decree after it had been executed as it would to a dispute relating to the execution of a decree before it had been executed. It might be noted here that earlier, E.A. 230/79 had been allowed by an order dated 5th October 1979. This was sought to be reviewed by the Petitioners herein by application E.A. 771/79. There it was stated that on account of the sudden demise of their counsel, Sri Muhammed Kunju during the pungency of the proceedings they were not able to engage another counsel and put forth their case properly before the court. It was further stated therein:

Why I made this extract will be clear from the subsequent discussion. This application for revision was allowed and E.A. 230 of 1979 was restored to file and heard afresh. It was then the impugned order, the details of which I have given earlier, was passed. The judgment debtors aggrieved by the order have come up in revision to this Court.

In the revision it is contended that the court below failed to take note of the fact that the Respondent had only invoked the inherent powers of the court and not Section 47, Code of Civil Procedure. The court erred in thinking that the prayer made by the Respondent comes u/s 47. The authorities cited before the court are not properly appreciated. It is urged that the claim made by the Respondent-Applicant in the E.A. docs no arise in. execution. It is also come ended that there has been no assessment of the profits from the items of the properties involved in the sale for adjustment, y It is pointed out that the court below failed to note that for items 2 to 4 of the. items sold, the Respondent himself had assessed the profits at Rs. 60 in the E.P. and therefore now to have the adjustment made fixing the profits for item 2 alone at Rs. 300 per month is quite unreasonable and arbitrary.

I would first refer to the last point which while Mr. C.P. Damodaran Nayar, learned Counsel for the Petitioners, strongly put forward before me, has not been raised at all before the court below. That is clear from the order itself as it does not deal with the same. In the objections (counter statement) apart from stating that the decree does not provide for payment of any profit, no question is raised as regards the rate as claimed in the E.A. In the review petition also, apart from stating in pare 4, that in the suit Plaintiff had not sought for profits from the Defendants and no evidence taken with respect to in one, there is no averment specifically objecting to the rate of Rs. 300 per month specified in the E.A. The real contention raised before the court below reiterated in the review application, I have quoted earlier. Therefore, though at the time of hearing I felt that the question of the quantum of profits might require further evidence, in the light of the objections raised in the court below by the Petitioners and the limited nature of the revision powers, I would be exceeding my jurisdiction if I direct a remand in regard to the question of rate at which profits could be claimed for adjustment.

Now we come to the main question whether profits which the decree holder is deprived of on account of non-delivery of property sold and for which sale certificate has been issued could be realised in execution or whether a separate suit is necessary for the same. I might here also point out that the Petitioners have raised no contention in the counter statement that they had filed, that property has not been taken delivery on account of no fault of theirs. Therefore, if the decree holder is wrongly deprived of the income of the property which he had purchased in court auction in satisfaction of the decree on account of any wrongful conduct of the judgment debtors, is he or is he not entitled to get redress at the hands of the executing court? Or should he initiate fresh action by instituting a suit?

The Petitioners'' counsel relied on a decision of the Calcutta High Court reported in Arjun Lal Vs. Banbehari, . The matter there arose in appeal oat of a suit for recovery of possession and mesne profits. The Plaintiff was the Appellant. He was the landlord of an occupancy holding, and the Defendants were tenants under him. He got a rent decree against them, and in execution of the decree purchased the holding himself and obtained in due course the tale certificate. It appears that he did not thereafter obtain possession of the holding. Instead however of applying to the court for delivery of possession under Order 21, Rule 95, CPC within 3 years of the date of confirmation of sale (as provided in Article 180 of Schedule 1 of Limitation Act of 1908), the Plaintiff filed the suit for recovery of possession with mesne profits. The lower courts concurrently held on the basis of the decision of the Full Bench of Calcutta High Court in Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, , that the suit is barred u/s 47, Code of Civil Procedure. The propriety of the view taken by the courts below was challenged in appeal before the High Court. The case came up before a Bench consisting of B.N. Rao and C.C. Biswas, JJ. The learned Judges in regard to the Full Bench decision in Kailas Chandra''s Case said that the question there was whether an appeal lay from an order passed on an application under order 21, Rule 95, CPC by an auction purchaser who was the decree holder himself. This was held to depend on whether the case came u/s 47 of the Code, and this in turn was held to depend on: (i) whether the decree holder-aultion purchaser was a party to the suit, and (ii) what there the question of delivery of possession was a question relating to the execution; discharge and satisfaction of the decree within the meaning of Section 47. The Full Bench had answered both the questions in the affirmative. The Division Bench in Arjun Lal Vs. Banbehari, said that it follows accordingly from the Full Bench decision that when a decree holder-auction purchaser seeks to recover possession of any immovable property purchased by him, he must proceed by way of an application and not by a separate suit; in other words if he wants khan possession he is limited to remedy by order 21, Rule 95 of the Code.

On behalf of the Plaintiff, Appellant in Debi Prasad�s Case two contentions were advanced to distinguish the facts in that case from the fact'', in Kailas Chandra�s Case. One was that that decree holder auction purchaser in the case was the landlord and as landlord apart from the right of the auction purchaser under Order 21 Rule 95, there is the independent right to enter into possession as upon the determination of the tenancy and it was that right which the Plaintiff asserted and therefore Section 47 will not come as a bar. The court rejected this plea stating that a landlord-decree holder is a decree holder all the same. As landlord, the Plaintiff might have a right of re-entry on the determination of the tenancy but there was no getting away from the fact that the determination of the tenancy was there the direct result of his auction purchase as decree holder, causing the merger of the interest of the landlord and the tenant in the same person. The second contention raised was that as there was the claim for mesne profits which was outside the scope of the application under Order 21, Rule 95, the suit could not be held to be barred u/s 47. Section 47 could only bar a suit when the same relief could be obtained by application. This plea was met by Biswas, J. speaking for the Bench in the following words:

The short answer is that a claim to mesne profits can arise only when the Plaintiff has established his title to recover possession. The effect of the Full Bench decision is that so far as possession is concerned, his only remedy is by way of application under Order 21, Rule 95 and then if he seeks mesne profits, he must bring a separate suit for the purpose. This doubtless may seem to involve a needless multiplicity of proceedings, but whether this is a consideration which might or should have weighed with the Full Bench, it is not for us to say. It does not appear that this aspect of the matter was at all presented to, or considered by, the Full Bench but the decision is there, and so long as it stands, we are bound by it.

It is this observation that is taken advantage of by the learned Counsel for the Petitioners in contending that mesne profits cannot be ordered to be adjusted in an application in execution.

With great respect to the two eminent Judges, I would venture to state that these observations in so far as they indicate that a separate suit for profit�s can be filed may not be taken as laying down the correct law on the matter. I should in this connection quote the following passage from the judgment of Chakravarthi, J., in Kailas Chandra''s Case ILR 53 Cal.781 : AIR 798 (at page 809):

Section 47 of the CPC runs as follows:

All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

In order to arrive at a conclusion in this matter two questions arise: 1st, is a proceeding under Order 21, Rule 95, CPC a proceeding ''relating to execution of the decree''?

After a property is sold in execution, the Court occupying the position of the vendor has to deliver possession of the property sold by it to the purchaser. This duty Court undertakes in order to complete the sale by which the money due to the decree holder has been realized. These proceedings may not be strictly a part of the execution before realization of the money due under the decree, but they certainly vatic out of the execution of the decree and are therefore related to it. The Rule 95 is in Order 21, which is comprised under general heading in the Code as execution of decree and orders''. When an application under Rule 95 is made in execution of a decree for possession of specific immovable property, the proceedings then not only relate to the decree but may also affect the decree itself.

The prayer for adjustment of the mesne profits in the case arise out of the execution of the decree and therefore relates to the execution of the decree. As the learned Judge himself pointed out at another place a decision may well relate to the execution of a decree though it may not affect the decree.

Page, J. in his concurring judgment in the Full Bench case of Kailash Chandra has said (at page 807).

Until he has been given possession of the property that he has purchased at the excitation sale he has not fully s civil the fruits of the decree, and therefore, a proceeding in execution cannot be sad to be completed (at least so far as a decree holder is concerned) in a case of sale until he has obtained the proceed and benefit of the sale held in execution of his decree and the execution of his decree cannot be said to be satisfied until in one case he has received the purchase money paid into Court, and in the other until he has been put into possession of the property of the judgment debtor which lie has purchased. Per Ed c. J. and Blair, J. in Moti Lal v. Makund Singh (1897) 19 All 477.

If this is the correct law, why cannot it be logically inferred that steps for realisation of profits of property wrongfully withheld for delivery could not be said to relate to execution of decree.

Eighty-eight years back the Privy Council said in Prosunno Coomar Sanyal v. Karidas Sanyal (1892) 19 I.A. 166, that Section 244 of the Code of Civil Procedure, 1832, corresponding to Section 47 of the Code of 1908, should be construed liberally. The Privy Council reiterated this view in Ganapathy v. Krishnamashariar 45 I.A. 54 : AIR 1917 P.C. 121, Chief Justice M.S. Menon said in the case of Malathi Amma v. Jose (1963) 2 K.L.R. 41 57.

The object of Section 47is to preclude the unnecessary expense and delay that fresh trials entail, and such a provision must naturally be construed as liberally as the language would permit.

Finally, A.K. Mukherjee, J. said speaking for the Supreme Court in Harnandrai v. Debidutt AIR 1973 S.C. 2433, at page 2427:

It is important to remember that after the decision of the Privy Council in Ganapathy''s Cass 45 Ind. App. 54 : AIR 1917 PC. 121, there has been an amendment of Section 47 a result of which the purchaser at a sale in execution of a decree, whether he is the decree-debtor or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction purchaser and the judgment debtor must in our view be determined by executing court and not by a separate suit.

(emphasis mine)

The expression "relating to the execution" has not been defined by the Legislature, probibly with the intention of leaving it flexible. As is clear from the decision in Ramanna v. Nallaparaju AIR 1956 S.C. 8, the expression would apply as well to a dispute arising in relation to the execution of a decree after it had been executed, as it would to a dispute before it had been executed.

In the light of the above discuss on. I see no reason to interfere in the order impugned. The Civil Revision Petition is dismissed. I make no order as to costs in the circumstances of the case.