MAYADHAR MISRA Vs. PRAMOD CHANDRA MISRA

JUDGEMENT

(1.) MAYADHAR Misra (Appellant), Nagendranalh Misra and Krishna Chandra Misra are three brothers. Pramod Chandra Misra (respondent No. 1) minor is the natural born son of Krishna Chandra Misra and claims to be the adopted son of deceased nagendranath Misra whose widow is Rajani Dibya (respondent No. 2 ). The three brothers executed a mortgage bond in favour of the Cuttack Bank Ltd. , (respondent no 3 ). On 23-6-53 there was a registered partition deed amongst the three brothers whereby it was agreed that Krishna Chandra Misra would pay up all the joint family debts of which the aforesaid mortgage bond was one. As there was no payment, Cuttack Bank filed Mortgage Suit No. 229 of 1959 in the Court of the munsif, Second Court, Cuttack, against the aforesaid three mortgagors and obtained a decree. Execution Case No. 53 of 1960 was filed against Mayadhar Misra, Rajani Dibya and krishna Chandra Misra in respect of a claim of Rs. 1245. The property was put to sale in execution of the decree and on 5-5-61 Cuttack Bank purchased the mortgaged properties for Rs. 1045. The sale was confirmed and execution case was dismissed on part satisfaction on 12-7-61. Cuttack Bank merged with the united Bank on 4-9-61. On 23-1-62 United Bank asked for delivery of possession of the property. On 23-8-62 United Bank sold the disputed property to Mayadhar misra for Rs. 1600, On 27-9-62 the application by United Bank for delivery of possession was rejected as no steps were taken. On 19-1-63 Mayadhar filed an application for being substituted as auction purchaser in place of United Bank and for delivery of possession. Respondents 1 and 2 filed an objection under Sections 47 and 151 Civil P. C. alleging that the mortgaged property was kept in charge of Mayadhar Misra for repayment of the mortgage dues, and that Mayadhar taking advantage of the minority of respondent no. 1 and the helplessness and ignorance of respondent No. 2 purchased the property from United Bank to deprive them of their title. The sale in favour of mayadhar was collusive. They accordingly prayed that delivery of possession of the property should not be given to Mayadhar. The executing Court overruled this objection holding that it had no merit. The lower appellate Court has held that respondents 1 and 2 established their case and that the application for delivery of possession by Mayadhar was not maintainable. Against the reversing appellate decree this Misc. Appeal has been filed by Mayadhar.

(2.) MR. Sinha raised two contentions-

(3.) THE explanation to Section 47, Civil P. C. lays down that for the purposes of that section a purchaser at a sale in execution of the decree is a party to the suit. The question raised by respondents 1 and 2 would thus be one between them as judgment-debtors and Mayadhar as the transferee from the auction purchaser who is to be deemed as a party to the suit by virtue of the explanation, and not on the basis of the theory that he is the judgment-debtor or the representative of the judgment-debtor. On this ground the application cannot be said to be non-maintainable.