SUBBAYYA PILLAI LEKSHMANA PILLAI Vs. NARAYANI SUBHASHINI

JUDGEMENT

(1.) THIS appeal is a tragic illustration of the in­action of the legislature in clarifying a statutory ambiguity where High Courts have spoken in conflicting voices for about half a century.The continuance of the uncertainty of law leads to speculation in litigation and militates against the rule of law.In the present case,a moot point under section 47 of the Civil Procedure Code has divided the High Courts of India and the Supreme Court has not yet pronounced on it,apparently because no case has reached that,level.

(2.) THE facts are few so far as they are relevant to the appeal.The decree -holder purchased in court auction the property of the judgment -debtor in execution of his money decree.Thereafter,instead of resorting to proceedings under Order 21,Civil Procedure Code,for exe­cuting the sale certificate and taking possession,( he had made one effort on the executive side but it proved futile)he filed the present suit for recovery of possession from the judgment -debtor who set up the bar of section 47 which was not accepted by the trial court,but in appeal proved successful.The disappointed decree -holder has come up in second appeal to complain that he is the owner of the property having purchased it in court auction and that he is entitled to recover possession from the judgment -debtor notwith­standing section 47,Civil Procedure Code.According to him,any question arising while en­forcing a sale certificate under Order 21,C.P.C .,even by a decree -holder cannot be held to relate to the execution,discharge or satisfaction of the decree.Counsel on both sides argued at great length and the material for the length is fur­nished by the numerous precedents on the point supporting both sides.Quite a few courts have taken the view that a decree -holder who buys property in execution of his decree sheds his capacity as party to the suit and assumes the character of auction -purchaser thereafter and that the further stages in proceedings for recover­ing possession from the judgment -debtor by such auction -purchaser do not relate to the execution,discharge or satisfaction of the decree.This view has been highlighted in a Full Bench ruling of the Patna High Court reported in A.I.R.1931 Patna 241.Other High Courts also have endorsed this view,among them are the High Courts of Allahabad,Bombay,Lahore,Rangoon,the Chief Court of Oudh as also the Judicial Commissioner's Court(as well as the High Court)of Himachal Pradesh.The opposite view point has been espoused by an equally imposing array of High Courts including those of Madras,Calcutta,Madhya Pradesh,Nagpur,Travancore,Travancore -Cochin,Punjab and the courts of the Judicial Commissioners of Sind and Peshawar.Counting the number of courts may not always be the correct way to decide a question of law although counsel were tempted into that exercise.The view which found favour with Madras,Travancore and Travancore -Cochin has been referred to with a hint of approval by Kerala in State of Travancore -Cochin v .Lakshmi Ammal Meenakshi Ammal 1957 K.L.T.1094,although counsel for the appellant is right in pointing out that the question was not directly decided there.

(3.) THE second question which has led to considerable controversy,and which could also have been easily settled by an amendment of section 47,is as to whether a decree -holder -purchaser at a sale in execution of the decree is raising a question relating to the execution,discharges or satisfaction of the decree when actually he is trying to get delivery of the pro­perty under Order 21,rule 95 on the strength of the sale certificate obtained under Order 21,rule 94.Those courts which have held that section 47 is a bar to a suit brought by the decree -holder -auction -purchaser argue that the full fruits of the decree are obtained by the decree -holder only when he secures possession of the property and until then he is seeking satis­faction and questions which crop up during that stage are questions which relate to the satisfac­tion of the decree.The rival view point is based on the express provisions of Order 21,rule 72,C.P.C .,which lays down that the holder of a decree shall bid for or purchase property sold in execution of that decree only with the express permission of the court "and then comes the crucial provision "and ''Where a decree -holder purchases with such permis­sion,the purchase -money and the amount due on the decree may .,be set off against one another,and the Court executing the decree shall enter up satisfaction of the decree ;." Order 21,rule 72(2)in terms stipulates that satisfaction of the decree shall be entered up,on a purchase of the judgment -debtor's properties by the decree -holder.How can there be any question relating to satisfaction of a decree if,on the purchase,satisfaction of the decree is entered up by virtue of Order 21,rule 72(2)? There are other approaches to the question based upon article 138 of the Indian Limitation Act,1908 Krishna as the Patna decision points out;but I am not elaborating them now.I may candidly state that,presented in the simple form in which I have set it out,there is much to commend the view that in enforcement of the sale certificate under Order 21,C.P.C .,what the decree -holder does is not to execute,the decree or seek satis­faction of the decree but to put through the sale certificate and,with the assistance of the summary procedure under Order 21,C.P.C .,to get the fruits of his purchase.If this view is sound,section 47 will not come in the way of a suit by such decree -holder -auction -purchaser when he seeks recovery of possession from his judgment -debtor.In such procedural matters law is amoral like the rule of the road and there is no issue of right or wrong.