Harnandrai Badridas v. Debidutt Bhagwati Prasad & Ors.

MUKH.ERJEA, J.-This appeal by certificate from a judgment of the Calcutta High Court raises an important question as to. whether after an auction sale in execution of a decree a decree-holder auction·pur-chaser can move the executing court for delivery of vacant .possession of an immovable property or whether he has to file a separate suit to get that possession. The short facts of the case are as follows. In May 1956 one Debidutt Bhagwati Prasad obtained a moneY decree against Harn'andrai Badridas. In January 1959 Mr. S. Tibrewal, a member of the Calcutta Bar was appointed Receiver in dn insolvency proceeding against one Durga Prasad Goinka, a partner of the defendant firm in respect of premises No. 99 and 128 Cotton Street, Calcutta for the· purpose of selling those properties. On 3 April 1958 Mr. Tibrewal was also appointed receiver in execution of the decree obtained by Debidutt Bhagwatj Prasad for the sale of the two premises. On 26 April 1958 the properties were put up to sale by auction and one Kanta Prosad Chotaria was declared the purchaser of premises No. 128, Cot-ton Street for Rs. 52,000/-. Kanta Prasad made a deposit of Rs. 13,000/- as earnest money.··· There were, it appears, various pro-ceedings after this at .the end of which, on 19 May 1964, there WaS an order directing the receiver to complete the sale within one month from that date and Kanta Prosad was directed to pay the balance of ~e purchase money within that time. The receiver was directed to execute and register a conveyance on behalf of the judgment-debtors who were the owners of premises No. 128, Cotton Street in case they tefused to register the same, The purchaser was bY the same order directed to pay interest on the balance of the purchase money from 13 June 1963 to 19 March 1964 in default whereof there was an order not to execute the conveyance. On 17 June 1964 the receiver execut-ed. the conveyance on behalf of the judgment-debtor and the insolvent. · On 19 June 1964 the purchaser through his attorney requested the receiver to make over possession of premises No. 128, Cotton Street J

On 23 July 1964 the receiver was further requested by the attorney . to make over possession of the premises by the issue of letters of attm;n· men t addressed to each tenant in respect of portions which were ten- ~ ted and to make over vacant possession. Qf that portion of the pre-mises which was in the occupation of the judgment-debtor. to the pur-chaser. On 17th November 1964 an application was made praying inter-II alia for an order upon the judgment-debtor _to deliver vacant posses-

sion of .the premises in their occupation to the receiver and also a direction to the receiver to deliver vacant possession of the same to the purchaser. In due course, the court made. an _order in. terms-of :_.:;;;;-:::.-.;::_;...£.~~- SU;;~B COUJtT ltEPOaTS

Z12 al against that order in the appellate co . Gtigi.nll l1lat peaT«· order On was ~"-·" Hence this present ann-1 'llrt tho

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·n contention of the appellant. befc;>re the appellate COIU1 The JD3l us is that as soon as a rece1vcr 111 executton has ex • well as before. fs favour of an auction purchaser the decree stands ~ut?i ::::r::e an end of the exe~ution proc~edings so that the ~: tion of the auction-purchaser gett!ng possessiO~ ot t!Ie property is , matter which has nothing to do w1t~ the execution, diSCharge or sati,s. II hu:tion of the decree. Such a questiO? does no~ fall to be dete!ln.intd b the executing court but can be decided onl¥ lD a separate suit. The Y lion that has been raised by .the appell~~t IS one ~hich has formed rsubject matter of 3 long senes Of deCIS_IO_DS Which UDfortWJatClJ hAve followed two divergent strea~s. Ther~ JS o~ the one hand a full bench decision of the Calcutta High Court m Ka.lash Chandra Tarat-a v. Gopal Chandra Poddar(1) followe~ ?Y the Madras High Court. while on the other hand there IS the deciSion of the Lahore High Q>urt in Rom Singh Gopa/ Singh and Anr, v. Abdullah Habibullah(') which bas OO;n followed in various full bench decisions by the Allahi-bad High Court and also by the Patna High Court and the BombaJ High Caurt. In the present case, the Calcu ta High Court bas follow-ed, as indeed they were bound to follow, the full bench decision in K.ailash Chandra Tara/dar's casc!"( 1)- G. K. Mitter J. who delivered tbe judgment of the appellate court after referring to the various con-flicting decisions of different High Courts in India on this questi011 makes the followini observation :

''It is somewhat surprising that in spite o! great di'\'Cl'- gcnc.e of opinion among the different High Courts the matter has not reached the Supreme Court as yet and one can only hope that it will do so at an early date 10 that the question , can be resolved ODCe for alt.''

In Kllilash Chandra Tara/dar's case!"(') the auction-purchas~r w~ 'lfas a~o the decree-holder has made an application for delivery of possess10n under o.XXI r.95 of the Code of Civil Procedure. The exec~ting court held that he was only entitled to possession under r:96 !hat 1s, thro!Jgh a tenant in possession. Upon an appeal by the decrec-hol~er auchon purchilser the appeal was resisted mainly on the con-lcntJoa that no appeal lay. The lower appellate court allowed the appeal and ordered the auction-purchaser to be put into kluu po~~s-5100 under r .. 95: Upon appeal by the judgment-debtor to the High Court, the prmctpal contention of the jud~ment-d.:btor was that no appeal lay to the District Court. The Division Bench who heard the ~p~al refe:r.ed t~e case to the Full Bench oa account of certain con· ICtmg decJsJons In the 1-li~;h Court of Calcutta. While making the ~hde0 .of .reference the Div;sion Bench held that no appeal llY b:fore 1 e !Strict Court because the matrer did not come within r. 97 on t~eo gr~~nd!l. name!~ (i) because it was not a question arising b~twee~ cuti~a 1~ to the SUit a.nd (ii) it was not a matter relating to !he e~j 11 deli 0 dischharltC or sat•sfaction of the decree. Charterjee, Acting C. d

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venng 1• e JUdgment on behalf of himself and four other learnc {I) l.l.R. SJ Cal. 7SJ. (2) ll.R. 26 1:111. 252. Judges ans.wered the question _as _to whether a decree-hoider aucti j)prcbaset IS a party t<? the swt, 10 ~~ affirmative. Relyin amoc:' thers on the observation of the Judtctal Committee in the gcase ~ Prosunno r:oomar Sanlal v. Ka_lidas Sanyal(') the learned Actin Chief JustiCe put a Wide and liberal construction on sec 47 of U:,. th. i Code' of Civil Procedure and decided that the decree-holder was lioilbtedly a party to the suit a~d did not lose that status after tho sale. ~ for th~ second questiOn,, his Lordship held that the weight of authonty was m favour of ~e vtew ~bat where an auction-purchase~ is the ~ccree-ho~der any q~.cstion _relatt~g to delivery of possession is a question relatmg to the execution, dtscharge or satisfaction of the decree" within the meaning of sec. 47.

In Ram Singh Gopal Singh & Anr, v. Abdullah Habibullah(:f) the Lahore High Court came to an entirely contrary decision. According 1o the Lahore High Court, sec. 47 of the Code of Civil Procedure does not app!Y to an order passed on an app:ication under o.XXI r. 95 by an aocuon-purchascr who was also the decree-holder. This view ""hich is supported by a stream of decisions of the High Courts of Allahabad, Patna, Bombay nnd Rangoon makes no distinction between a decree-holder purchaser and a stranger purchaser. In the case of a decree-holder purchaser it is, according to this view, a mere accident lh3t the purchaser was also a party before the auction sale and that adnntageous factor should not therefore have the effect of making his position better or worse than that of a purchaser who had been a ~tranger in the suit. Further, according to this view, as soon as a ,;.Jgmcnt debtor's property is sold in auction and the decretal amount realised by the decree·holder, the decree stand~ .satisfied and after .tbet I stage there can be no scope for any question ansmg as to the execution,

6c:hnrgc or aatisfaction of the decree. The question whetner t!te ~~~ ~. purchaser gets possession of the property is a matter which hu IOthlng to do with the question of satisfaction of the decree.

As. we have already said, the appellant relied on the Full Bench decision of the Lahore High Court. We have carefully'gonc. through !he various decisions cited before us and we find oursel~es tn "r,t'c.e· ment with the opinion of the full bznch of the Calcutta Htgh Cou• t 10 Kailash Tara/dar's case (3). If a confirmation of the sat7 . w~~(W finally terminate all question~ as to exccu·inn of the d~creo tt ts £ ','- cult to appredntc whv the lrcis!<:~'ure wouiJ frame such rul~~ as ru ~s 9S to I 02 under o XX r of the Cod<! of Civil Procedur~ . e are tnt r f . • • , ,. f t J tbnt the bould lc"ISIU1UfC no.t JnUS hespcct ul agreement with G. K. •• tt cr . • t ! end with ave thought that the duty of the _ex_ecut~g co~ur 1,. islature thought ~~c confirmation of the! sale and It t'> b .c~us~ f~ht ~;f app!vinc for that t'1e auction purch::~sl!r should have t e r ~ that rocecdings for P<>ss~s~ion under the provis!ons of r .. 95 a;d rt ~~ of r~les relati'ng to obtarn,ng possession were tncluded 1n th .. ca c the execution of the de-:rce". f b ,_

Se ·c. our d b cons t ued libnrally As ar ac ... as II . 47 in view shou! · e r 1 in ~favo;Jr of patting a

In 1 '!'>2(•), the Privy Council spoke strong y , . t:!l !.t.R. zr, L1h. 252. (I) 19J.A.. I M. (~) 1 '> r.A Joli. {3) I.L.R. 53 Cal. 781.

liberal construction on sec. 244 of the Code of Ovil Procedure of 1~82 which corresponded to present sec. 47 of ·the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar( 1 ) If a liberal construction be put upon sec. 47 it is difficult to under-stand why a, decree-holder who has b~en a party to the -decree will shed his character as such party merely upon purchasing the property at the execution sale. After· all, a decree-holder purchases the pro-n perty in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery .of possession to him of the property pur-chased by him. Having regard. to this consideration, if any question -is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment debtor offers any resistance to d-elivery of possession the question must be om which in our view relates to the execution, discharge and satis-faction of the decree and arises between the parties to the suit.

Speaking of the two conllicting views on this section the learned commentator of the 13th ·Edi1ion of Sir Dinshaw Mulla's· "Code· of Civil Procedure makes the followi~g observation : ·

"Th~ cases in which it has been held that an auction purchaser even if he is the decree-holder is not a party to the suit; require reconsideration in view of the ruling of the Judicial Committee that such an auction purchaser is a party . to the suit."

The decision of the Judicial Committee which the learned commen-tator had in mind is t1~at of Ganapathy v. Krishnamachariar(1).

·E It is important to ~emember th~t after the decision of the Privy Council in Ganapathy's case there h.as been an amendment of sec. 47 as a result of which the purchaser at a sale in . execution of a decree, whether he is the decree-holder or not, is unquestionably a party to · the suit for the purpose of sec. 41,. Having regard to this, all ques-tion:; arising b~twcen the auction p_urchaser and the judgment-debtor must in our view b~ determined by the executing court and not by a separate suit. no . In view of the foregoing considerations we have hesitation in upholding the view taken by the Calcutta High Court. In the circum-stances we dismiss the appeal with: costs.

. S.C .. Appeal dismissed. ..c -..> ~~.· ·-f (1) 45 1. A. 54.· L944 Sup C.I./73-25J0-4-Jl-74-GIPF

CML APPELLATE JURISDICTION: Civil Appeal No. 1323 of 1967. Appeal by certificate from the judgment and order dated April 29. 1966 of the <=;alcutta High Court in Appeal No. 109 of 1965.

S. C. Manchanda and V. Maya Krishnan, for the appellant.

B. P. Malzeshwari and Suresh Seth, for Respondent No. 1_ ..

Sharad Manohar and B. P. Maheshwari, for Respondent No. 3.