HARNANDRAI BADRIDAS Vs. DEBIDUTT BHAGWATI PRASAD

JUDGEMENT

(1.) 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-purchaser can move the executing court for delivery of vacant possession of an immovable property or whether he has to file 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 Harnandrai Badridas. In January 1958 Mr. S. Tibrewal, a member of the Calcutta Bar was appointed Receiver in an 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 Bhagwati 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, Cotton Street for Rupees 52,000/-. Kanta Prosad made a deposit of Rs. 13,000/- as earnest money. There were, it appears, various proceedings 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 the 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 refused 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 executed 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. 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 attornment addressed to each tenant in respect of portions which were tenanted and to make over vacant possession of that portion of the premises which was in the occupation of the judgment-debtor to the purchaser. On 17 November l964 an application was made praying inter alia for an order upon the judgment-debtor to deliver vacant possession 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 that prayer. On appeal against that order in the appellate court the original order was confirmed. Hence this present appeal.

(2.) The main contention of the appellant before the appellate court as well as before us is that as soon as a receiver in execution has executed a conveyance in favour of an auction purchaser the decree stands satisfied and there is an end of the execution proceedings so that the question of the auction-purchaser getting possession of the property is a matter which has nothing to do with the execution, discharge or satisfaction of the decree. Such a question does not fall to be determined by the executing court but can be decided only in a separate suit. The question that has been raised by the appellant is one which has formed the subject matter of a long series of decisions which unfortunately have followed two divergent streams. There is on the one hand a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar, ILR 53 Cal 781 followed by the Madras High Court while on the other hand there is the decision of the Lahore High Court in Ram Singh Gopal Singh v. Abdullah Habibullah, ILR (1945) 26 Lah 252 which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court. In the present case, the Calcutta High Court has followed, as indeed they were bound to follow, the Full Bench decision in Kailash Chandra Tarafdar's case (supra). G. K. Mitter J. who delivered the judgment of the appellate court after referring to the various conflicting decisions of different High Courts in India on this question makes the following observation:

(3.) In Kailash Chandra Tarafdar's case, (supra) the auction purchaser who was also the decree-holder had made an application for delivery of possession under O. XXI R. 95 of the Code of Civil Procedure. The executing court held that he was only entitled to possession under R. 96 that is, through a tenant in possession. Upon an appeal by the decree-holder auction-purchaser the appeal was resisted mainly on the contention that no appeal lay. The lower appellate court allowed the appeal and ordered the auction-purchaser to be put into khas possession under R. 95. Upon appeal by the judgment-debtor to the High Court, the principal contention of the indgment-debtor was that no appeal lay to the District Court. The Division Bench who heard the appeal referred the case to the Full Bench on account of certain conflicting decisions in the High Court of Calcutta. While making the order of reference the Division Bench held that no appeal lay before the District Court because the matter did not come within R. 97 on two grounds, namely (i) because it was not a question arising between the parties to the suit and (ii) it was not a matter relating to the execution, discharge or satisfaction of the decree. Chatterjee, Acting C. J. delivering the Judgment on behalf of himself and four other learned Judges answered the question as to whether a decree-holder auction purchaser is a party to the suit, in the affirmative. Relying among others on the observation of the Judicial Committee in the case of Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Ind App 166 (PC) the learned Acting Chief Justice put a wide and liberal construction on Section 47 of the Code of Civil Procedure and decided that the decree-holder was undoubtedly a party to the suit and did not lose that status after the sale. As for the second question, his Lordship held that the weight of authority was in favour of the view that where an auction-purchaser is the decree-holder, any question relating to delivery of possession is a question relating to the "execution, discharge or satisfaction of the decree" within the meaning of Section 47.