SAVLARAM GANGARAM Vs. VISHWANATH ANANT

JUDGEMENT

(1.) THE property of the judgment-debtor was sold in execution of a mortgage decree and was bought by the decree-holder himself. On coming to take possession he was obstructed, and he had to ask for the help of the Court under Order XXI, Rule 95. THE contention of the judgment-debtor was that the property of which the decree-holder-auction-purchaser was trying to take possession had not all been included in the sale; and that question was decided against the judgment-debtor on the ground that it was at any rate included in the mortgage and therefore must be deemed to have been included in the mortgage decree and in the certificate of sale. THE judgment-debtor now comes in appeal and is met by a preliminary objection that no appeal lies, since this is not a question arising under Section 47 of the Civil Procedure Code.

(2.) IT appears that there is a conflict of decisions among the various High Courts as to a decree-holder who is also an auction-purchaser being still liable to be regarded as a party to the suit. If he is not a party to the suit, then of course Section 47 does not apply and no appeal would lie in such a matter, and it would be open to the auction-purchaser to sue independently of Section 47 and independently of any proceedings in execution. The view that he is not a party to the suit must perhaps be regarded as no longer tenable in view of the decision of the Privy Council in Ganapathy Mudaliar v. Krishnamachariar (1917) L. R. 45 I. A. 54 : 20 Bom. L. R. 580. However that may be, the question is whether all the conditions governing Section 47 are satisfied in this particular case. Even if we assume for the sake of argument that an auction purchaser who is also a decree-holder can be regarded either as a party to the suit or as a representative in interest of the judgment-debtor and that the judgment-debtor is also a party to the suit, the question to fall under Section 47 of the Civil Procedure Code would have to be a question relating to the execution, discharge or satisfaction of the decree. We have the authority of a full bench of this High Court in Hargovind Fulchand v. Bhudar Raoji (1924) I. L. R. 48 Bom. 550 : S. C. 26 Bom. L. R. 601, F. B. , to show that a decree-holder-auction-purchaser seeking to get possession of the property which he has bought does so not in execution, of his decree but by virtue of a title acquired as purchaser, so that no question relating to the decree arises and Section 47 is not a bar to his suit. We do not know what the defence was on the merits, as the report is silent on that point. But prima facie we think that the question involved in giving an auction-purchaser possession of the property which he has bought cannot ordinarily be a question relating to the execution, discharge or satisfaction of the decree, unless the words "relating to" are unduly extended. After all in this case (and in most cases of the kind) the decree was satisfied not by the possession of the auction-purchaser but by the fact of the sale; and thereafter no question relating to the execution of the decree any longer remained. Even if it was found impossible for various reasons to give the auction-purchaser actual possession or even symbolical possession of the property, the fact would remain that the decree was satisfied by the sale.

(3.) IT is also pointed out that Rules 95 to 103 occur in the Order dealing with execution. But in our view that does not mean that they deal with matters relating to the execution of a decree within the meaning of Section 47.