Ramkumar Agarwala vs Ramcharan Hanuman Sonar and Another

Fazl Ali, J.—The circumstances which have given rise to this appeal are briefly these: The opposite party 2 obtained a decree against opposite party 1 in money suit No. 30/1-2 of 1925. In execution of the decree certain properties were sold and purchased by the appellant and on 12th June 1928 a sale certificate was granted to him; when the appellant, however, went to take delivery of possession he was resisted by the judgment-debtor and thereupon he filed an application under Order 21, Rule 97. The main point which arose in connexion with that application was whether the sale certificate related to an area of four kathas or seven kathas and odd of land.

The learned Munsif decided in favour of the appellant holding that the sale was in respect of seven kathas and odd of land. From this decision the judgment-debtor appealed to the District Judge and the appeal was heard by the Subordinate Judge who held that the Munsif had not rightly construed the sale certificate. When the appeal was taken up by the learned Subordinate Judge one of the points raised on behalf of the appellants before him was that in law no appeal was maintainable by the judgment-debtor from the decision of the Munsif. The learned Subordinate Judge, however, relying upon certain observations made by Mullick, J. in the case of Askaran Baid v. Raghunath Prasad AIR 1925 Pat. 478 rules out this objection and held that an appeal did lie.

The appellant thereupon appealed to this Court and one of the questions which was strenuously debated, before this Court was whether an appeal before the Subordinate Judge was maintainable.

Now, the answer to this question depends upon whether the proceeding which purported to be under Order 21 Rule 97 can be treated as a proceeding u/s 47, Civil P.C. It is clear that if it was a proceeding u/s 47 then both an appeal and second appeal would lie.

If, on the other hand, it was not proceeding u/s 47 then no appeal would lie from the decision of the Munsif because the CPC does not provide an, appeal from an order passed under Order 21. Rule 97. In order to determine whether the proceeding before the Munsif was a proceeding u/s 47 it must be shown (l) that the proceeding was instituted to determine a question relating of the execution, discharge or satisfaction of the decree and (2) that it was a question to be determined between the parties to the suit in which the decree was passed.

As regards the first point, there has been a considerable difference of opinion in the various Courts in this country. One of the decisions in which the matter has been very exhaustively dealt; with is the Full Bench decision of the Allahabad High Court in Bhagwati v. Banwari Lal [1909] 31 All. 82. The view taken by the majority of the Court in that case was that any question arising after the sale had been completed and the decree had been satisfied was not a question relating to the execution discharge or satisfaction of the decree and this view was set forth in the judgment of Banerji. J. in these terms:

Upon the judgment-debtor''s property being old and the amount due under the decree being realised the decree is fully executed, discharged and satisfied and no question relating to the exacution, discharge or satisfaction of the decree remains to be determined. Whether or not the auction-purchaser obtains possession of the property sold is wholly immaterial for the purposes of the decree and does not in any way affect it. If the decree-holder purchases the property but does not obtain possession, that circumstance would not entitle him to take out execution of the decree which has already been satisfied. So long as the sale subsists he cannot claim a refund of the purchase money or ask for execution of the decree to the extent of the amount of the purchase money.

The same question was raised in this Court in the case of Abdul Gani v. Raja Ram [1916] 1 Pat. 232 whore three Judges of this .Court unanimously decided that no appeal lies from an order under Rule 95, Order 21, Civil P.C. and it may be pointed out that Chamier, C.J. who delivered the judgment in that case relied mainly on the Pull Bench decision of the Allahabad High Court to which I have just now referred.

The learned Subordinate Judge, however, has referred to another decision of this Court in Askaran Baid v. Raghunath Prasad AIR 1925 Pat. 478 where Mullick, J. without referring to the Full Bench decision took the view that an order under Order 21, Rule 98 delivering or refusing to deliver property to the decree-holder auction-purchaser related to the execution of the decree and was therefore appealable u/s 47, Civil P.C. The learned Judge in the course of his judgment went further and made the following observations:

In the majority of cases the judgment-debtor resists on the ground that the property of which delivery of possession is sought, was not in fact sold or that if it was sold, the sale was illegal or contrary to the terms of the decree. In such an objection the auction-purchaser, whether he may be the decree-holder or a third party, would be a necessary party and the order of the Court disposing of the objection would certainly be a decree tinder Section 47 but the objection must be made before delivery of possession.

Now it may be pointed out in this connexion that this decision was virtually a decision by a single Judge of this Court, because Ross, J, who was a member of the Bench before whom the case came up for hearing merely agreed that the appeal should be dismissed and evidently did not fully subscribe to all the observations made in the course of the judgment. It may be further pointed out that there are other cases of this Court in which the decision in Haji Abdul Gani v. Raja Ram [1916] 1 Pat..232 was followed, and I may mention only two of those cases at present. One of them is the case of Jadab Chandra Poddar Vs. Rameshwar Marwari, in which Wort, J. after referring to several cases of this Court as well as other High Courts including the case of Hargobind Fulchand v. Bhuddar Raoji AIR 1924 Bom. 429 adhered to the view which was put forward in the eariler case. The other case is Triloke Nath Jha and Others Vs. Bansman Jha and Others, which in dealing with the question whether an application for delivery of possession was a step-in-aid of execution, Das, J, referred with approval to the principle laid down in the Pull Bench decision in Bhagwati v. Banwari Lal [1909] 31 All. 82 and observed as follows:

It seems to me that execution comes to an end with the sale of the property and that whether or not the auction-purchaser obtains possession of the property sold is wholly immaterial for the purpose of the decree and it does not in any way affect it. Banerji, J, pointed out in the case of Bhagwati v. Banwari Lal [1909] 31 All. 82 that if the decree-holder purchases the property but does not obtain possession that circumstance would not entitle him to take out execution of the decree which has already been satisfied. The argument is founded on principle and is covered by the decision of the Court in Haji Abdul Gani v. Raja Ram [1916] 1 Pat. .232 which is binding on us.

It may, therefore, be safely laid down that so far as this Court is concerned the view has prevailed that an application under Order 21, Rules 95 or 97 will not be a proceeding relating to the execution, discharge or satisfaction of the decree. I am, however, not ooivious of the fact that the contrary view has been held in a number of decisions given by some of the other High Courts, prominent among which the recent decision of a Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, . In my opinion it is unnecessary to discuss the principle laid down in these cases, because the contention that proceeding before the Munsif was a proceeding u/s 47 must fail on the second ground, namely, that the proceeding in question was not between the parties to the suit in which the decree was passed. This leads me to a consideration of the question whether an auction-purchaser who is other than the decree-holder is a representative-in-interest of one of the parties to the suit. It is now well settled that such an auction-purchaser cannot be considered to be representative-in-interest of the decree-holder.

In some cases, however, it has been held that he may, for certain purposes, be considered to be a representative of the judgment-debtor. It is urged on behalf of the appellant in this particular case that he cannot be considered to be a representative of the judgment-debtor because the judgment-debtor was still in possession of the property. Assuming, however, that he may be considered to be a representative-in-interest of the judgment-debtor, it follows that the question which arose before the Munsif was a question between the judgment-debtor on one side and stranger to the suit who may be considered to be a representative of the judgment-debtor on the other side. It is thus clear that in any view it was not a question between the parties to the suit. This aspect of the case has been clearly pointed out in the Pull Bench decision of the Allahabad High Court in Bhagwati v. Banwari Lal [1909] 31 All. 82 by Banerji, J. in the following passages:

It was held by a Full Bench of this Court in Gulzari Lall v. Madho Ram [1904] 26 All. 447 that an auction-purchaser of the interests of the judgment-debtor, who is hound by the decree is his legal representative within the meaning of Section 224, Therefore, when a question arises between the judgment-debtor and the auction-purchaser of his interests, it is a question between the judgment-debtor and his representative and is consequently not a question which may be determined under that section. Besides as has been pointed out in Sasi Bhusan Mukerji v. Radhanath Bose 19 C.W.N. 835 by Mukerji, J, it is well settled that when the purchaser is not the decree-holder, a question which may arise in the proceedings for delivery of possession between him and the judgment-debtor does not fall within the scope of Section 47.

The same view will also appear to be supported on a close reading of the decision in Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, . This being so, is is clear that the proceeding before the learned Munsif was not a proceeding u/s 47. Civil P.C. and therefore no appeal lay to the Subordinate Judge. The decision of the Subordinate Judge was clearly without jurisdiction and must be vacated. The appeal is, therefore, allowed with costs. It is unnecessary to deal with the revision in view of the fact that the appeal succeeds.

Macpherson, J.

I agree.