LAKSHMANAN Vs. MANORANJITHA AMMAL

JUDGEMENT

(1.) IN this proceeding some interesting questions arise relating to execution. The petitioner is the auction purchaser. He is aggrieved against the order passed by the learned District Munsif, Cuddalore, in E. A. No. 1321 of 1984, which was an application by the respondents herein to declare the execution proceedings as invalid and void, and to order re-delivery of item no. 1.

(2.) THE necessary facts for the disposal of this proceedings are given below: THE petitioner was the highest bidder in the court auction held on 16th February, 1971 of two items of properties in E. P. No. 97 of 1978 in O. S. No. 67 of 1958. THE judgment-debtors 1 and 2 passed away. In that execution petition, the respondents herein are respondents 3 and 5 besides other respondents, viz. , 4 and 6 to 9. THE sale was confirmed on 30th september, 1972. On the strength of the sale certificate, the petitioner filed e. A. No. 1824 of 1972 for delivery of items 1 and 2. On 19th December, 1972, delivery was ordered; pursuant thereto, the petitioner is said to have taken possession of item 2, while in respect of item 1, delivery could not be made. THEreafter, the said execution application was dismissed. Subsequently, the petitioner took out E. A. No. 1591 of 1983 seeking delivery of item 1; on 3rd february, 1984 the said item is said to have been taken delivery of by the petitioner. It is thereafter, the respondents came forward with E. A. No. 1321 of 1984 to declare the proceedings in E. A. No. 1591 of 1983 as invalid and void, and to order re-delivery. As already stated re-delivery was ordered on 10th May, 1985 and it is this order that is sought to be revised in this reision.

(3.) ACCORDING to Explanation II (a) to S. 47 of the Code, an auction purchaser is deemed to be a party to the suit in which the decree is passed. Thus, one of the ingredients set out in S. 47 (1) of the Code, viz. , an auction purchaser is a party to the suit, is fulfilled. The other ingredient is that the question shall relate to execution, discharge or satisfaction of the decree. Explanation 11 (b) to S. 47 provides that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of S. 47. In the instant case that the question relates to delivery of possession, is beyond doubt, because the respondents claimed a declaratio in that execution proceedings in E. A. No. 1591 of 1983 are wholly invalid and void and for an order for re-delivery of the property, i. e. , item No. 1. Thus, even this condition is fulfilled; in other words, S. 4 7 (1) is duly complied with by E. A. No. 1321 of 1984. If so, I find no difficulty in rejecting the contention that E. A. No. 1321 of 1984 is not maintainable under S. 47 of the Code.