Sandu Sakul Mithu Tharaganar and Another vs Hussain Sahib and Others

Charles Arnole White, C.J.—In this case the decree holder in a suit purchased certain lands at Court auction. An application made by him

u/s 318 of the Code of Civil Pro-cedure for delivery of possession was dismissed. After his death further applications were made by his heirs.

These applications wore also dismissed. The heirs sold the lands to the plaintiffs and the plaintiffs now sue the judgment-debtors for recovery of

possession. The point is--is the suit barred by Section 244, Civil Procedure Code? This involves two questions: (1) Is the right of the plain-tiffs to

recover possession of the lands, a question relating to the execution, discharge or satisfaction of the decree? (2) If it is, does the question arise

between the parties to the suit in which the decree was passed, or their representatives?

As regards the first question, if the matter were res-integra, I should be disposed to hold that the question is not one"" relating to the execution,

discharge or satisfaction of the decree"" It has been held, however, in a series of cases decided by this Court, that pro-ceedings between a decree-

holder who has purchased at Court auction and the judgment-debtor are proceedings "" relating to the execution, discharge, or satisfaction of the

decree."" See Viraraghava v. Venkata I.L.R., S.M.217, Vallathan v. Panguni I.L.R, 12 M. 454, Mutha v. Appasami ILR M., 504, Lakshmanan

Chettiar v. Kannammal I.L.R., 24 M 185, Kasinatha Aiyar v. Uthamansa Rowthan I.L.R.M 529 and Kattayat Pathumma v. Raman Menon

I.L.R.,M. 740. The same view was taken by the Calcutta High Court in Madhusudan Dass v. Govinda Pria Chowdharani I.L.R., 27 C.34.

Although the decisions on the point are not altogether uniform, the balance of authority certainly supports the view taken by the Lower Appellate

Court in this case.

On principle I do not think any distinction can be drawn be-tween a case where the proceedings are between the decree-holder who has

purchased at Court auction and the judgment-debtor and a case where, as here, the proceedings are between a party who derives title from a

decree-holder who has purchased and a judgment-debtor. The argument on behalf of the appellants was that Section 318 only provides for the

making of an order in favour of the certified purchaser and that there is no provision of law whereby a party who derives title from a decree-holder

who has purchased, can obtain delivery of possession from the judgment-debtor by execution proceedings in the suit in which the decree was

obtained. This may be so, but it does not follow that proceedings between the party who derives title from the decree-holder who has purchased

and the judgment-debtor are not proceedings relating to the execution, discharge or satisfaction of the decree. It is open to the party who proposes

to take a conveyance from the decree-holder who has purchased to stipulate that the latter shall take the necessary steps to obtain delivery of

possession u/s 318.

The second question is--the purchaser from a decree-holder who has purchased at Court auction a ""representative"" of the decree-holder for the

purposes of Section 244?

As to this the authorities appear to be all one way. in Dwar Buksh Sirkar v. Fatik Jak I.L.R.,Cal 250, it was held that the word "" repre-sentative

included a purchaser of the decree from the decree-holder. In Ishan Chunder Sirkar v. Beni Madhub Sirkar I.L.R., 24 Cal62 it was held that it

included a purchaser of the interest of the judgment-debtor. In the case of Kasinatha Aiyar v. Uthamansa Rowthan I.L.R., 35 M. 528. Moore, J.,

expressed the view from which Bhashyam Aiyangar, J., did not dissent, that a party who purchases from the decree-holder the lands which are the

subject-matter of the decree is a "" representative"" for the purposes of the section. I see no reason to take a different view from that adopted in the

cases above referred to.

I think the District Judge was right. The second appeal is dismissed with costs.

Subrahmania Aiyar, J.

It is now too late to contend that the question with respect to the delivery u/s 318 of the CPC of property purchased in a Court sale by the

decree-holder, is not one relating to the execution of the decree. And as with reference to Section 244 of the Civil Procedure Code, the purchaser

of the property from the decree-holder is the repre-sentative of the decree-holder within the meaning of that section, it follows that the bar to a

separate suit laid down by that section applies to a question such as that raised in the present suit between the judgment-debtor and the purchaser

from the decree-holder. I agree therefore that the appeal fails and should be dismissed with costs.