Nadamuni Narayana Iyengar vs Veerabhadra Pillai alias Rangaratnam Pillai

Wallis, J.—This is a suit to recover a temple office which is alleged to be hereditary in the plaintiff''s family and which was purchased at a

court-auction by the defendant in execution of a decree against a previous holder of the office. The plaintiff obtained a decree in the lower

appellate court on the ground that the office was erne of personal service and that the attachment and sale were bad as opposed to Section

266(f)of the Code of Civil Procedure. It is now contended that such a suit is barred by the operation of Section 244 of the CPC and should have

been dismissed. It is well settled that as between the judgment debtor and the decree-holder, this is an objection which can only, be taken in

execution and it is also well settled that the provisions of Section 244 prohibit a suit by a party or his representatives against An auction-purchaser

to raise a question which, as between the judgment-debtor and the decree-holder, must have been determined under that section - Basti Ram v.

Fattu (1886) ILR 8 A. 146; Daulat Singh v. Jugal Kishore ILR (1900) A. 108 and Mayan Pathuti v. Pakuran ILR (1900) M. 347. These

decisions are not based on the ground that the auction-purchaser is the representative of the decree-holder within the meaning of the section, but

upon the general intention of the legislature as manifested in the section. The view that the auction-purchaser may be treated as the representative

of the decree-holder in cases arising between him and the judgment-debtor was no doubt taken in Manikka Odayan v. Rajagopal Pillai ILR

(1907) M. 507 relying on Sadhu Taraganar v. Hussain Sahib ILR (1905) M. 87 in preference to the authorities cited the other day. But as pointed

out in Krishna Satapasti v. Sarasvatula Sambasiva Row ILR (1908) M. 177, Sadhu Taraganar v. Hussain Sahib ILR (1905) M. 87 does dot

support so general a proposition, as in that case the decree-holder was the auction-purchaser and the parties in question were his representatives

by virtue of their purchase from him. The decision in Manikka Odayan v. Rajagopala Pillai ILR (1907) M. 507 should. I think, have been

supported on the ground that the application raised a question between the representatives of the judgment-debtor and the decree-holder in which

the auction-purchaser had been added as a party interested - Prosunno Kumar Sanyal v. Kali Das Sanyal ILR (1895) 19 C. 683 (P.C.); Hira a

Lal Ghose v. Chundro Kanto Ghose ILR (1899) C. 539. In the present case we must reverse the decree of the lower appellate court and restore

that of the District Munsif with costs here and in the lower appellate court.

Krishnaswami Aiyar, J.

A decree was passed against the plaintiff''s father in O.S. No. 90 of 1894 on the file of the. Sri-rangam Munsif for maintenance, making the

emoluments of the Mirasi office of accountant in the Srirangam temple liable, The decree was executed against the plaintiff after the death of his

father and it must be taken that due notice was issued to the plaintiff of the proceedings in execution. The office of accountant was itself attached

and, assuming that the attachment was irregular, no exception having been taken to the attachment, the attached property was sold on the 16th July

1897 and the sale confirmed. The defendant, who purchased the office in execution, obtained possession of it in November 1903. The plaintiff

institutes the present suit for the surrender by the defendant of the Mirasi office on the ground that the sale was null and void. The plaintiff having

obtained a decree in the District Court, the defendant has preferred this second appeal. It seems to me that the suit is not maintainable. The plaintiff

was a party to the execution proceedings and the only mode in which he can impeach the sale is by an application to the executing court to set

aside the sale. It is argued for the plaintiff that the sale is a nullity because the decree did not direct, the sale of the office and the office was

inalienable. There was a personal decree against the plaintiff''s father and even assuming that the office was not charged with the liability, it could be

proceeded against in execution of the money decree. Supposing that the office was inalienable, on which I do not express an opinion, it was

competent to the executing court to deal with the question whether the office was saleable. No exception having been taken in execution to the

sale, we must take it that the sale was rightly held. The defendant cannot be ousted from possession until the sale is duly set aside. No attempt

having been made by the plaintiff to impeach the sale in execution and the sale having been confirmed, it is not competent to the plaintiff to disturb

the possession of the auction-purchaser by suit. See Mayan Pathuti v. Pakuran ILR (1898) M. 347 and Kishory Mohan Roy v. Mahomed

Mujaffar Hossein ILR (1890) C. 188. The auction-purchaser derives his rights from the sale which the party to the execution proceeding should

not be permitted to impeach except by application to the executing court. The true principle has been sometimes overlooked and the bar to the suit

of the judgment-debtor against the stranger-purchaser or vice versa rested on Section 244 of the Code of Civil Procedure, the suit being supposed

to raise a question between the parties to the suit or heir representatives. See Dhani Ram v. Chaturbhuj ILR (1900) A. 86 and Daulat Singh v.

Jugal Kishore ILR (1900) A. 108.

But this latter view appears to me to be erroneous. The mistake arises from a confusion between two ideas. One is that Section 244 being a bar

to setting aside the sale except in a proceeding between the parties, the suit against the purchaser is not maintainable until it is so set aside. The

other is that Section 244 bars the suit as the purchaser is the representative of the decree-holder. It seems to me the former view is correct.

Section 335 would be consistent with the latter. We cannot heat this suit as an application u/s 244 to set aside the sale as the decree-holder who

would be affected by it is not a party. It is perhaps unnecessary to discuss the question whether Section 244 is a bar to the present suit though I

have no hesitation in expressing my concurrence with the decision in Krishna Satapasti v. Sarasvatula Sambasiva Row ILR (1907) M. 177. It

seems to me that the view upheld in Manikka Odayan v. Rajagopala Pillai ILR (1907) M. 507 that the auction-purchaser is the representative of

the decree-holder in execution of a money decree is not tenable. Sadhu Taraganar v. Hussain Sahib ILR (1905) M. 87, which was the case of a

purchaser from the decree-holder who purchased in execution of his own decree, is different from the case of a stranger-purchaser. It is difficult to

see how a stranger purchasing in execution of a money decree can ever be treated as the representative of the decree-holder. He purchases the

rights of the judgment-debtor in the property attached and not those of the decree-holder between whom and himself there is no privity of estate. It

may sometimes be that the purchase carries more than the interest of a judgment-debtor, as for example when the judgment-debtor has done

something with the property in fraud of the decree-holder. The stranger-purchaser cannot be the representative of both parties. The true rule is that

where the decree is a mortgage decree, the purchaser in execution will be the representative of the judgment-debtor. Where property is attached

and sold tinder a money decree a stranger purchasing the property obtains the right of the judgment-debtor in the property but is riot the

representative even, of the judgment-debtor; still less can he be the representative of the decree-holder. The authorities cited by the learned Judges

in Manikka Odayan v. Rajagopala Pillai ILR (1907) M. 507 are against the view which they have enunciated. See Bashir Uddin v. Jori Singh ILR

(1896) A. 140; Mammod v. Locke ILR (1897) M. 487; Chinnammal and Others Vs. Athinatha lyengar and Another, . It appears to me that

Sadhu Taraganar v. Hussain Sahib ILR (1905) M. 87 was relied on under a misapprehension as pointed out in Krishna Satapasti v. Sarasvatula

Sambasiva Row ILR (1907) M. 177, Nor do the other eases, viz., Kasinatha Ayyar v. Uthumansa Rewthan ILR (1902) M. 529, Isham Chunder

Sirkar v. Beni Madhub Sirkar ILR (1897) C. 62 and Prosunno Kumar Sanyal v. Kali Das Sanyal (1895) ILR 19 C. 683. (P.C.) support the

judgment in Manikka Odayan v. Rajagopala Pillai ILR (1907) M. 507. Section, 244 therefore does not bar the suit.

I would, however, in the view already expressed, get aside the decree of the District Judge and dismiss the suit with costs throughout.