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Judgment
K.L. Pandey, J.
This revision u/s 115 of the CPC is directed against an order dated 8th May 1964 whereby the lower appeal Court modified an earlier order of the executing Court dated 18th August 1962 to the effect that the auction-purchaser should be placed in symbolical possession of the house he had purchased except to the extent of the share of one Aulad Ahmad and directed instead that he should be placed in full possession (actual Civil Revision No. 336 of 1964 decided on 9-3-1965 against the order of N.K. Singh, or constructive) of that house. By the same order, the lower appeal Court dismissed two other appeals against the order dated 18th August 1962, one filed by the judgment-debtor and the other filed by six of the applicants. The judgment-debt or alone has filed two further appeals, Miscellaneous Appeals Nos. 76 and 100 of 1E64, against the order dated 8th May 1964. This order shall govern those two appeals also.
The main facts of the ease, -which are not in contest, are these. In Civil Suit No. 109 of 1951 dated 21st July 1951, one Gopaldas had obtained against Tufail Ahmad a decree for a sum of money. This decree was executed, a house be Urging to Tufail Ahmad was in due course puttosale and it was purchased by Babulal. That sale was confirmed on 3rd March 195S and a sale certificate was granted to him on 12th March 19)8. Thereupon, he filed an application under Order 21, Rule 95 of the Code for delivery of possession. When the warrant for delivery of possession was sought to be executed, Abrar Ahmad (applicant 1) resisted delivery of possession. That led the auction-purchaser to file an application under Order 21, Rule 97 of the Code complaining of the resistance. Abrar Ahmad was summoned, he filed his reply, issues were framed and the case was fixed for evidence of parties. Since they did not lead any oral evidence, the controversy was decided on the basis of the judgment in the partition Suit No. 33 of 1951 which Abrar Ahmad and Ors. had filed against Tufail Ahmad. On 7th November 1958, it was held that Abrar Ahmad claimed in good faith to be in possession of a half share of the house on his own account with the consequence that symbolical possession of the house to the extent of a half share only was given to the auction-purchaser on 28th November 1959.
As already indicated, the partition suit mentioned in the last paragraph was filed by Abrar Ahmad and Ors. against Tufail Ahmad for division and separate possession of their half share in the disputed house. Their claim was decreed by the Court of first instance on 28th December 1954 and affirmed in appeal on 30th June 1958. It was on the basis of these concurring decisions that the order dated 7th November 1958 was passed. Tufail Ahmad, however, preferred a further appeal against the decree in the partition suit. On 30th April I960, this Court allowed that second appeal and dismissed the suit on the ground that Abrar Ahmad and other Plaintiffs had no share in the house. Thereupon, on 2nd August 1960, the auction-purchaser filed a fresh application under Order 21, Rules 95 and 96 of the Code. The judgment-debtor opposed it on the ground that Babulal was not the auction-purchaser. The applicants too resisted it because the order dated 7th November 1958, which had not been get aside or modified by a suit under Order 21, Rule 103 of the Code, became final and conclusive. The executing Court rejected these contentions and passed the order dated 18th August 1962. The reason for making an exception in favour of Aulad Ahmad was that he was not made a party to the second appeal arising out of the partition suit. By the impugned order dated 8th May 1964, the appeal file d by the auction-purchaser was, as shown, allowed and the other two appeals were dismissed.
The main question for consideration in this case is whether the order dated 7th November 1958 should be regarded as conclusive because the auction-purchaser failed to institute, within one year of that date, a suit for setting aside the order. Rule 103 of Order 21 of the Code, which provides for such a suit, reads:
Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.
I do Dot agree with the lower appeal Court that the order dated 7th November 1958 was passed without proper investigation. As I indicated earlier, issue* had been framed and the parties were also given an opportunity to adduce such evidence as they desired. The point, therefore, is whether Rule 103 contemplates, and applies to, a case where the right required to be established is already the subject-matter of a suit between the parties, which, having been previously instituted, is pending on the date of the order. If, in this situation. Rule 103 is regarded as requiring the filing of a fresh suit, it is plain that such a suit can serve no purpose at all because it will be stayed u/s 10 of the Code and will ultimately be governed by the conclusions reached in the earlier suit. As observed by the Privy Council in Mussamat Basso Kaur v. Lata Dhum Singh 15 I.A. 211 : ILR 11 All. 47, it will be an inconvenient state of the law if it were found necessary for any one to institute a perfectly vain litigation under peril of losing his property if he did not do so. Further, what Rule 103 seems to contemplate is the establishment of the right claimed by instituting early a suit for the purpose and this object is well served if, on the date of the order, there is a suit pending between the parties which will ultimately lead to the establishment of his right. So, in Gopiram Onkarmall Vs. Sewantilal Punam Chand, at p. 582, their Lordships stated:
The rule applies in terms to a case where no title suit in respect of the same property is pending between the parties, because it enjoins on the unsuccessful party to bring " suit for establishment of his title after the order is passed against bin. The period for limitation prescribed in such a suit is one year. Evidently, Rule 103 does not contemplate or cover a case in which a previously instituted suit by the aggrieved party is already pending. The suit is not certainly nullified or invalidated by a summary order. If competent Court gives a decision in that suit within a year of the passing of the summary order, the decision must be accepted as valid because the time-limit for challenging the summary order has not yet run out and the party in whose favour the order is made is the summary proceeding cannot get any advantage of it, the summary order not having attained finality.
In support of the view taken in the Calcutta case, two earlier decisions of the Madras High Court were noticed and relied upon. In the first of these cases, K.M.M. Palaniappa Chettiar Vs. Ramaswami Servai and Others, , Venkatramana Rao J. observed at pages 583-4 as follows:-
The policy underlying Rule 103, Order 21, is to have a speedy settlement of the questions of title raised in execution sales. But is the institution of a suit under Order 21, Rule 103, Code of Civil Procedure, the only remedy for having the said order superseded J If the establishment of a right to the property is what is contemplated as necessary to supersede the order and I think it is, then if the unsuccessful party is able to get hi* right declared or established within a year, in my opinion, the order must be held to have been superseded by the later adjudication. Otherwise, in spite of the adjudication in his favour, he must again 61e a suit to have his right to the property declared, which a competent Court has already declared. As observed by the Privy Council in Basu Kaur v. Dhum Singh 15 I.A. 211 : ILR 11 All. 47, it would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not.
It seems to me that such a vain litigation is not contemplated by the Legislature, The use of the word ''may'' in Rule 103 seems to suggest that what is contemplated is the establishment of a right and the remedy by a suit is indicated. But what makes the order conclusive is not the failure to institute a suit but the failure to have the right established. I am therefore of the opinion that it is not obligatory for the Petitioner to institute a suit within a year from 9th July 1932, for establishing that the purchase by him in court-auction conferred a valid title to the property against the Respondents.
In the second case, P. Umanath Bhandary and Another Vs. Pedru Souza, at p. 20, Govindarajachari J. stated:
In the case before me the facts are quite clear. Pedru was quite vigilant and took the prudent step of filing a suit sufficiently early so that he may not be disturbed in his possession in pursuance of decrees, which as it now turns out, are not binding on him. His suit was, as already stated, dismissed in 1941. But he took the matter up to the appellate Court and the appeal which, for this purpose must certainly be regarded as a continuation of the suit, was pending at the time when the claim orders were passed against Pedru. It seems to me that the law does not require that he should have withdrawn that appeal and started again with fresh suits for an adjudication of the identical question involved. There would be obvious difficulty in the way of his withdrawing the appeal because if he withdraw the appeal, it could certainly be argued on the other side that the decree of the Courts below would stand confirmed. The only thing perhaps that could be suggested is he could have continued the appeal and filed fresh suit also. This again seems to me to be equally futile. In the absence of any definite decision binding on me laying down that even where there is a suit or an appeal filed by the defeated objector pending at the time when the claim order is made, it is still legally obligatory on his part to file another suit after the passing of the order, I am not prepared to hold that notwithstanding the later adjudication in Pedru''s favour his title must be regarded as having been negatived by his inaction in so far as he did not file a suit within one year after the passing of the claim orders.
A contrary view was, however, taken in two other cases of the Madras High Court, namely, Kolachina Venkata Seetharamayya and Others Vs. Veena Tolasi Babu and Others, and Abdul Rahim v. Swaminath ILR 1955 Mad. 744. In the first case, it was held that the pendency of a suit between the parties regarding the title to the property did not absolve the party seeking to contest the summary order from the obligation of filing a suit under Rule 103. In the second case decided on 10th March 1954, the earlier decision of that Court, namely, K.M.M. Palaniappa Chettiar Vs. Ramaswami Servai and Others, and P. Umanath Bhandary and Another Vs. Pedru Souza, at p. 20 were not noticed and it was held that the rule did not in terms mitigate its rigour by providing that such a suit need not be filed when another suit for a declaration of the right claimed and summarily rejected was already filed and pending. This conclusion proceeds on the view that Rule 103 applies to all cases including the one where a previously instituted suit between parties involving the right in question is pending on the date of the summary order. With all due respect, I am of opinion that Rule 103 should not be construed as insisting upon the institution of an inutile suit and that it does not contemplate or cover a case in which a previously instituted suit involving the right in question is already pending.
It is, however, urged that the auction-purchaser had not himself instituted any suit and that, as laid down in K.M.M. Palaniappa Chettiar Vs. Ramaswami Servai and Others, and also in the Calcutta case, a relaxation from the rule cannot be availed of by the person aggrieved by a summary order unless he has obtained in the previously instituted suit a decision in his favour within one year of the date of the order. I am unable to see why the principle will not apply if the earlier suit had not been initiated by the person aggrieved by the summary order because what is contemplated by Rule 103 is the establishment of the right and it matters little which party had initiated the suit in which that right is established. Further, this was a case of devolution of interest of the judgment-debtor during the pendency of the first appeal preferred by him against the decree in the partition suit. Even when the auction-purchaser, who was the transferee, did not apply to the Court to be brought on record in the first appeal or in the second appeal, that would not affect the result. The reason is that the enabling provision of Order 22, Rule 10 of the Code has been conceived in the interest of the party in whose favour the transfer has been made and it is not incumbent on him to make any application under the rule during the pendency of the suit or appeal if he considers his interests to be amply protected. He will, however, be bound by, and also be entitled to the benefit of, the decree that might ultimately be passed as if he were a party to the proceedings: Jugalkishore Saraf Vs. Raw Cotton Co. Ltd., and Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, . So, in the earlier of the two decisions mentioned above, the transferee pendente lite was held entitled to execute the decree though it had made no application under Order 22, Rule 10 and had allowed the suit to be continued in the name of the original Plaintiffs.
The other contention that the filing of a suit under Rule 103 is necessary unless the party aggrieved by the summary order has succeeded in establishing, within one year of that order, the right claimed by him cannot be accepted on principle. If, on the date of the summary order, a previously instituted suit, in which the right required to be established is in contest between the parties, is pending, no useful purpose can be served by insisting upon the institution of a fresh suit only because the earlier suit has not been decided favourably to the party aggrieved by the summary order within one year of that order. It is the final decision in the earlier suit which will ultimately govern the matter and it matters little if the Court of first instance or of first appeal has or has not recorded such a decision within one year of the summary order. As the facts of the case in P. Umanath Bhandary and Another Vs. Pedru Souza, at p. 20 show, this was also the view taken by the Madras High Court.
Another point made was that Tarachand, and not Babulal, was the auction-purchaser. There is no substance in this contention because, soon after making the highest bid, Tarachand declared that he was bidding for and on behalf of Babulal and this was recorded in the proceedings not only by Tarachand but also by the officer conducting the sale. This is not all. Tarachand made an application to the same effect and the executing Court thereupon accepted Babulal as the auction-purchaser. In fact, Babulal had paid the purchase money in the usual two instalments. His position as auction-purchaser was not challenged in the execution proceedings either before or after confirmation of the sale in his favour. In these circumstances, it is idle to contend that he was not the auction-purchaser.
The next contention is that since Babulal applied for, and obtained, an order for refund of a half of the purchase money and the sale certificate was also directed to be rectified by showing that "it is valid in respect of joint half share in the house", he is disentitled to possession of the other half share. The material facts on which this contention is grounded are these. On 16th January 1960, Babulal made an application u/s 151 of the Code for refund of a half of the purchase money with interest on the ground that the judgment-debtor had only a half shire in the house. The executing Court allowed this application on 4th May I960 when it passed the following order:
The question is whether the applicant should be allowed the refund in these proceedings although a sale certificate has already been granted to him in respect of the whole house. No bar of law has been pointed out. This is still a matter to be determined in execution proceedings.
I, therefore, direct the refund of Rs. 10,050 to applicant Babulal out of the sale proceeds. The sale certificate issued in his name shall be corrected by showing that it is valid in respect of joint half share in the house.
This ground has not been raised in the application for revision or in the two appeals presumably because the aforesaid directions, unusual as they were, were not carried out. In my opinion, the order dated 4th May I960 is wholly bad for several reasons. In the first place, an application by a purchaser under Order 21, Rule 91 for setting aside the sale on the ground that the judgment-debtor had no salable interest must be made within 30 days from the date of sale under Article 166 of the Limitation Act. In this case, the application was made about two years alter the sale: T. Keshavan Vs. Bipathumma and Others, and Gulzari Lal Vs. Sheo Charan Lal and Others, . It is hardly necessary to say that when the time for making such an application has expired, there is no jurisdiction to invoke inherent powers u/s 151 of the Code: Gordhandas Ranchhoddas Vs. Ishvarbhai Chhanalal, . Secondly, there is no warranty of title in a court-sale and the purchaser bids at his own risk. He can, however, avoid the sale under Order 21, Rule 91 only when the judgment-debtor has no salable interest at all in the property put up for sale. Where the judgment-debtor has some salable interest however small, the sale cannot be set aside under Rule 91: Naranngi Vannachand Firm v. Narasayya AIR 1915 Mad. 303 : ILR 1945 Mad. 789. It is, however, urged that the auction-purchaser, who had been deprived of a half of the property purchased by him merely applied for refund of the proportionate part of the consideration. Even so, the order passed thereon cannot be regarded as less assailable. It is now firmly established that once a sale is confirmed, it is not open to the auction-purchaser to apply to the executing Court for a refund of the purchase money either in whole or in part: Bahadur Singh v. Ramphal ILR. 5 Luck. 552 (F.B.), AIR 1932 401 (Lahore) , Macha Kouwlan v. Kollora Koundan AIR 1936 Mad. 50 : ILR 59 Mad. 202 (F.B.) and Ousenh Ousenh v. Davasia Ghacko AIR 1953 Tra C. 619. For all these reasons, the order dated 4th May 1960 cannot be regarded as standing in the way of the auction-purchaser.
It is next argued that the order dated 7th November 1958 directing that the auction purchaser be placed in symbolical possession of the house to the extent of a half share became final and he was, thereafter, disentitled to make a fresh application for possession of the house. I do not consider that this contention is well-founded. Aikam J. held in Kesari Narain v. Abdul Hasan ILR 26 All. 365 that where the decree-holders-auction purchasers were resisted by a third party and they did not complain against the resistance within time, they were disentitled to make a fresh application for delivery of possession. This was expressly dissented from in Ganpatsingh v. Rnmgopal 1941 NLJ 494 : AIR 1941 Nag. 322 : ILR 1942 Nag. 633 which was followed in Norayanrao v. Chunnilal 1952 NLJ 30 : AIR 1953 Nag 236. The opinion of Aikman J. is grounded on th.9 reasoning that a contrary view would render the limitation prescribed for complaining against resistance otiose. As shown, that reasoning has no application to the fads of the present case because not only an application had been duly made under Order 21, Rule 97 of the Code, but the right negatived by the summary order was also subsequently established in a regular suit. What is more, the fresh application for delivery of possession dated 2 August 1960 was made within 3 years of the date when the sale became absolute. Indeed, the first application made for the purpose was itself not properly disposed of and should be deemed to have been viding because, even after the summary order, it was not dismissed. That being so, the second application for delivery of possession was really one for continuance of the earlier application All these reasons, it is needless to say, sufficiently meet the contention that a second application for delivery of possession could not be made.
It would further appear that so far as the half share claimed by Abrar Ahmad is concerned, the right to apply for delivery of possession had not arisen, or was suspended till 30th April 1950 when this Court dismissed the partition suit. The Calcutta High Court took a similar view upon somewhat like facts in Jateendra Chandra Bandopadhyay and Others Vs. Rebateemohan Das and Others, The facts of that case were these. One Rajchandra was the owner of certain items of property. He died leaving behind him surviving his only son Girish and two grandsons, Rajendra and Jogendra. Rajendra had made a will by which he bequeathed his property to his grandsons. Even so, after his death, his son Girish mortgaged the property. On the foot of that mortgage, the mortgagoes obtained a decree. Subsequent]y, Chardrakala wife of Girish, who had been appointed execute or by the will of Rajchardra, obtained probate. On 2 January 19''25, she instituted a suit for a declaration 1hat Girish had no title to the mortgaged property and that the property, which vested in her as executor, was not liable to be sold in execution of the decree obtained on the basis of the mortgage executed by Girish. During the pendency of this suit. The property was sold on 7th April 1P2G and the sale was confirmed on 10th May. Soon afterwards, the auction-purchasers applied for delivery of possession, but they could not get possession owing to the resistance offered by Chandrakala. On 13 November 1926, their application was dismissed in default. On 14 May 1928, the suit instituted by Chandrakala was decreed. However, there was a successful appeal and the High Court dismissed Chanelrakala''s suit on 15th July 1931. Thereupon, on 8th October 1931, the auction-purchasers made a fresh application for delivery of possession. It was held that that application was not barred by time. In support of this conclusion, this is what their Lordships stated:
The effect of the decree of the learned Subordinate Judge however was that it was declared by a competent Court that the decree holders had acquired no right on the basis of their auction-purchase in execution of the mortgage decree and consequently had no right to pet possession. This decree was binding on the auction-purchasers until it was set aside by the Court of appeal. Consequently, the position is that there was a cancellation of the cause of action for delivery of possession by the decree of the Subordinate Judge on 14th May 1928 operating to suspend the rights of the auction-purchasers. Consequently they are entitled, on removal of the cancellation by the Court of appeal, to avail of a fresh cause of action, which arose by reason thereof.
If the auction-purchasers applied for delivery of possession during the period between 14th May 1928 and 15th July 1931, they would have been successfully met with the plea that they had no right to get possession in view of the decree passed on 14th May 1928. Mr. Basu however contended that the auction-purchasers should have m"de a formal application for possession and, if their application failed, they could have riled an appeal against the order rejecting their application and thereby could have kept their application for delivery of possession pending till the question of title was finally decided by the appellate Court. In other words, the contention of Mr. Basu is that it was the duty of the auction-purchasers to apply for possession even though it was not possible for them to get possession till the question of title was finally decided. But the utmost benefit that the auction-purchasers could have got by such a proceeding would have been to have it suspended till the question of title was finally decided by the Court of appeal. It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if ho does not: see the case of Basu Kumar v. Dhum Singh I LR 11 All. 47.
We are therefore unable to give effect to the contention of Mr. Basu. This view is not inconsistent with the decision of the Judicial Committee in AIR 1934 134 (Privy Council) In that case the sale was confirmed by the Subordinate Judge and the appeal by the judgment-debtor was dismissed. In that case there was no question of suspension of any cause of action. Again the delivery of possession to the auction-purchasers in 1926 was interrupted and was rendered infructuous by the resistance occasioned by the executrix, who was claiming in good faith to be in possession of the property on her own account. In fact, as stated above, she had instituted a suit long before the sale for a declaration that the property belonged to her on the distinct assertion that she was in possession of the property as executrix. It is therefore clear that delivery of possession to the auction-purchasers was rendered infructuous not by any fault or laches on the part of the auction-purchasers, but by an obstacle, which could not be removed even in a proceeding under Order 21, Rule 97, Code of Civil Procedure. The position then was that the obstruction could not be removed until the suit terminated in favour of the auction-purchaser. In these circumstances, we are of opinion that the real effect of the order dated 13th November 1926, dismissing the application for delivery of possession for default, is that the application for delivery of possession was not finally disposed of but remained pending in the eye of the law. The present application for delivery of possession should therefore be treated as one for continuance or revival of the former one.
In regard to the right, if any, of Aulad Ahmad to the house, which was excepted by the executing Court, it is sufficient to say that there was in his favour no order under Order 21, Rule 99 which could become final within the meaning of Rule 103 and, therefore, so far as these proceedings are concerned, it is not at all material that he was not impleaded as a party to the successful second appeal against the decree in the partition suit. I do not express any opinion on the further question whether, apart from these proceedings, the failure to implead Aulad Ahmad as a party to the second appeal had, or could have, any other consequence.
The last contention is that once the auction-purchaser obtained and accepted symbolical possession of a half share of the house, he could not apply again asking for actual possession thereof. This contention is well-founded because, so far as the judgment-debtor is concerned, symbolical possession is as effective as actual possession: Juggobundhu Mukherjee v. Ram Chander Bysack ILR 5 Cal. 584 (F.B.), Suradhani v. Chandra Nath AIR 1917 Cal. 197, Jagadish Nath Roy Vs. Nafar Chandra Paramanik and Others, , Narayan v. Guruprasad 1952 NLJ 160 : AIR 1952 Nag. 246 : ILR 1951 Nag. 334 and Radhelal v. Chhabilchand 1955 NLJ 160 : AIR 1955 Nag. 79 : ILR 1955 Sag 561. However, as shown, the auction-purchaser is clearly entitled to obtain delivery of possession of the other half share of the house.
The order dated 8th May 1964 is modified. Instead of that order, there will now be an order directing that the auction-purchaser shall be placed, in possession of the other half share of the house. Subject to this modification in regard to the operative order, this revision and the two appeals are dismissed with costs. Hearing fee in each case Rs. 100.