V S MANI IYER Vs. AZHAKAN

JUDGEMENT

(1.) S.47 of the Code of Civil Procedure was amended by the Civil P. C. (Amendment) Act 1956 With effect from 1-1-1957 by incorporating the words "and a purchaser at a sale in execution of the decree" in the Explanation to that section and thereafter the Explanation read thus:

(2.) The question whether a decree holder purchaser, who for realisation of the decree amount brings the property of the judgment debtor for sale and purchases it himself, has. besides the right to seek delivery by an application in execution, the right of suit also is a question on which the view taken by the High Courts in India has not been uniform. But so far as this court is concerned the latest pronouncement of a Division Bench of this Court in Lakshmanan Pillai v. Subhashini, 1971 KLT 850 binds me and therefore I need not go into that question. In that decision it was held:

(3.) In the case of a stranger auction purchaser the position prior to the amendment to S.47 of the Code of Civil Procedure adverted to earlier was that such an auction purchaser had a right of suit. Not that on this there is no controversy here. But the preponderance of view in the decisions of the High Courts in India is that when the purchaser is a stranger the right of suit was available to him. The decisions on this question are collected at the footnote in the AIR Commentaries to the Code of Civil Procedure (7th Edn.) S.47, Note 19. page 750. Noting these decisions the commentator states: