RAMRATAN BHONDOO Vs. CHAUWAMAL LUKKIMAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit for possession of a house which the respondent had purchased in a court sale, in execution of his own decree against the appellant. The material facts are that on May 2, 1940 the sale was made absolute in favour of the decree-holder. On 19-4-1941 the sale certificate was granted to the decree-holder purchaser. On 10-4-1942 he applied to the executing court for delivery of possession of that house to him but eventually the execution was dismissed for default. Then the decree-holder purchaser brought this suit for possession. The suit was resisted by the judgment-debtor on the ground that the suit was barred. This objection did not find favour either with the trial Judge or with the first appellate Court.

(2.) IN this second appeal the only question to be decided is whether the suit is barred by Section 234 of the Gwalior Zabta Diwani (Gwalior State Code of Civil procedure) which was then in force. Section 234 of Gwalior Zabta Diwanj corresponds to Section 47 of the Indian Code of Civil Procedure. There is, however, this difference that the Gwalior Code provides that a dispute with the auction purchaser relating to the execution, discharge or satisfaction of the decree must be determined by the Court executing it while under Section 47 of the Indian code of Civil Procedure there is a conflict of decisions on that point. In the present case, therefore, it is not disputed that Section 234 is applicable provided it is found that the dispute in the suit is one which could be determined by the executing court as a question relating to execution, discharge or satisfaction of the decree.

(3.) THE question whether the dispute between the auction purchaser and the judgment-debtor relating to the delivery of possession is a matter relating to execution, discharge or satisfaction, has been the subject or great controversy and reported decisions on the point are not uniform. But where a decrees-holder is himself an execution purchaser the law is settled, so far as this court is concerned. In the case of Mst. Semabi v. Ganpatrao Yadorao ILR 1938 Nag 583 : (AIR 1938 nag 212), a Division Bench has held that a dispute relating to de-livery of possession between the decree-holder purchaser and the judgment-debtor resisting possession is one relating to execution, discharge and satisfaction of the decree within the meaning of Section 47 of the Civil Procedure Code. To the same effect is the decision reported in Narayanrao Amritrao v. Chunnilal Sitaram ILR 1952 Nag 150 : (AIR 1953 Nag 236 ). (See also Lachusa Mottlal v. Meharali rahimall AIR 1917 Nag 24 (2) ). The ratio decidend of the above authorities equally applies to Section 234 of the Zabta Diwani because it is in no way different from Section 47 of the Coda on the question in hand,