R. Govinda Naicker vs National Paper Company

P.V. Rajamannar, C.J.—This is an appeal under Clause 15 of the Letters Patent against the judgment of Rajagopalan, J., dismissing a Civil

Miscellaneous Appeal preferred by the Appellant before us against the order of the Subordinate Judge of Chingleput on an application made by

him under the provisions of the Madras Indebted Agriculturists'' Temporary Relief Act (Act V of 1954), for stay. The Respondent had obtained a

decree against the Appellant in a suit on the file of this Court, for the recovery of the amount due under a promissory note. In execution of this

money decree, the Respondent attached and brought to sale a house alleged to belong to the Appellant situated in Tambaram, and at the court-

sale the Respondent himself purchased it on 5th July 1950. The sale was duly confirmed, and a sale certificate was issued to the decree-holder

auction-purchaser. The wife of the Appellant intervened with a claim which was rejected. She thereupon filed a suit to set aside the adverse order,

and it is represented to us that that suit has also since been dismissed and an appeal is pending. The decree-holder who had purchased the

property filed an application under Order XXI, Rule 95 of the CPC (Execution Application No. 343 of 1951) for delivery of possession of the

house which he had purchased. It is to stay this application that the Appellant made the application under Madras Act V of 1954. The learned

Subordinate Judge dismissed the application. The Appellant filed the Civil Miscellaneous Appeal against the order of dismissal, and it was

dismissed by Rajagopalan, J., by the judgment now under appeal. Rajagopalan, J., held that the Appellant was an agriculturist within the meaning

of Madras Act V of 1954, but he held that Section 3 of the Act did not apply. Though the decree was for payment of money passed in a suit for

recovery of a debt, there was no application for the execution of that decree, which could be stayed under the Act. The question is, whether the

learned Judge was right in this view. We have no hesitation in saying that he was.

Whether a particular application is or is not an application for the execution of a decree within the meaning of Section 3 must be decided on the

plain meaning to be attached to the words ""application for the execution of a decree"". In our opinion, no assistance can be derived from decision

on questions such as whether a particular proceeding is or is not a proceeding which falls within Section 47 of the CPC for purposes of appeal or

whether a particular application is an execution application for the purpose of determining the article of the Limitation Act applicable to such an

application. So far as a decree for payment of money is concerned, there can be no application for the execution of such a decree after a sale had

been held in execution of such a decree and such a sale had been confirmed duly and after a sale certificate had been issued to the purchaser, be it

the decree-holder himself or a stranger. Mr. Seshachala Ayyar, learned Counsel for the Appellant, contended that the decree cannot be deemed to

have been executed till possession was obtained by the purchased decree-holder. We do not agree with him. The decree-holder purchaser may

have his remedies to obtain possession in pursuance of the sale certificate issued to him. But in doing so, he is not seeking to execute the decree. In

one sense, an application under Order XXI, Rule 95, Code of Civil Procedure, may be described as an execution petition because the provision is

found in the order relating to execution, namely, Order XXI. But that would not make the application one for the execution of a decree.

We agree with the learned Judge that the application made by the decree-holder purchaser under Order XXI, Rule 95 of CPC for delivery of

possession was not an application for the execution of a decree within the meaning of Section 3 of the Madras Act V of 1954.

The appeal is, therefore, dismissed with costs.