GANPAT SINGH Vs. KAILASH SHANKER

JUDGEMENT

(1.) THIS revision petition under Section 115, Cr.PC is directed against the order dated 12th December, 1980, passed by the learned District Judge, Jaipur City, Jaipur in Civil Misc. Case No. 1 of 1980, by which an application for possession filed by the decree -holder purchaser was held to be maintainable by applying Article 136 of the Limitation Act, in preference to Article 134 of the Limitation.

(2.) THE material facts lie in a narrow compass and may be stated thus : Applicant Kailash Shankar is a decree -holder. Chouth Mai and Kailash Shankar plaintiffs who were father and sons obtained a preliminary decree in a suit for sale of mortgaged property situated in Chowkri Ghat Darwaza, Kothi, Mani Ramji, Jaipur City, against defendants Ganpat Singh, Bharat Singh, Smt. Prakash Kanwar and Smt. Damma Kanwar alias Sint. Abbey Kanwar - -A preliminary decree was passed on 1st August, 1974 for a sum of Rs. 37,447.00 only. The decree -holder aplied for the sale of mortgaged property in execution case No. 34 of 1975. The property was to be auctioned on 14th July, 1978. Decree -holder Kailash Shankar himself purchased the property for a sum of Rs. 38,000/, in a court auction. The judgment -debtor filed objections against the same under Order 21, Rule 90, CPC, on various grounds of irregularties and illegality in publishing and conducting the sale. The objection petition was, however, dismissed on 2nd January, 1979 and consequently, the sale was confirmed by the Executing Court on 2nd January, 1979. Kailash Shankar decree -holder purchaser moved an application in the executing court for issuing a warrant for possession in his favour on 17th July, 1980. Ganpat Singh objector raised objections to the petition of the auction purchaser. It was contended by the objector petitioner that the application for possession is time barred. It was submitted that the application for possession was filed on 17th July, 1980 and the sale was confirmed on 2nd January, 1979. It was submitted by the petitioner that the application is governed by Article 134 of the Limitation Act, 1963 and the period of limitation prescribed for such an application is one year and the time begins to run from the sale becomes absolute. The learned District Judge vide his order dated 12th December, 1980 over -ruled the objections dismissing the objection petition filed by the petitioner and held that the application is governed by Article 136 of the Limitation Act, and, as such, it was within limitation, as the limitation prescribed under Article 136 is 12 years. Aggrieved by the order passed by the learned District Judge, the present revision petition has been filed.

(3.) IN view of the proposition laid down by their Lordships of the Supreme Court the question of delivery of possession under Order 21, Rule 38, CPC is one relating to execution, discharge and satisfaction of the decree. Thus, the view taken by the other High Courts, referred to above, and taken by this Court in Mohan Lal's case (supra) and Daya Shankar v. Khub Chand must be deemed to have been overruled. After the pronouncement made by the Hon'ble Supreme Court in the above referred case, this Court had occasion to consider this problem. The reported cases are Pukh Raj v. Kavar Chand 1974 RLW 59 and Triveni Bai v. Swaroop Chand 1974 RLW 79. In both the cases following the proposition of law laid down by the Hon'ble Supreme Court, this Court held that no separate suit lies for delivery of possession of the property purchased by the decree -holder auction purchaser at court sale and he must apply to the executing court for delivery of possession of the said property. Their Lordships of the Supreme Court in Harnandral's case have held that after the 1976 amendment of the CPC the distinction between decree -holder auction purchaser and stranger auction purchaser has vanished and both are unquestionably parties to the suit. It was also observed by their Lordships that if on account of sale all questions relating to execution, discharge and satisfaction came to an end, there was no purpose why the provisions as such Rules 95 to 102 should have been included in Order 21, CPC. A separate suit was, therefore, held to be barred. Under the Code of Civil Procedure prior to its amendment in 1976, the view prevailed for the applicability of Section 47 was that questions must be between the parties to the suit or their representatives and it must relate to the execution, discharge or satisfaction of the decree. If these factors are present then the question shall be determined by the court executing the decree and not by a separate suit. It is important to remember that after the decision of the Privy Council in Ganpathy v. Krishnamachaiar AIR 1917 PC 121, an amendment was made in Section 47, CPC and, it appears that after the pronouncement of the judgment by the Hon'ble Supreme Court in Harnandral's case (supra) on 4th May, 1973, Section 47, CPC has again been amended and, to resolve the dispute finally Explanation II, comprised in two parts (a) and (b) was substituted, making it clear that a question relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to execution, discharge or satisfaction of the decree within the meaning of this section. It may be noted here that all questions relating to delivery of possession, by a deeming clause, have been held to be questions relating to the execution, discharge and satisfaction of the decree for the purpose of Sub -clause (1) of Section 47, which provides that questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Without resorting to any authority, it is clear that all questions relating to delivery of possession of property which has been purchased by a purchaser, whether he be a decree -holder purchaser or stranger in the auction sale in execution of the decree shall be regarded questions relating to execution, discharge and satisfaction of the decree and it is also clear that all questions between the parties to the suit and relating to execution, discharge and satisfaction of the decree are to be determined by the Court executing the decree and not by a separate suit and for the purpose of Sub -section (1) of Section 47, a purchaser of property at sale in execution of a decree, shall be deemed to be a party to a suit in which a decree is passed. Thus, an auction purchaser is a party to the suit and questions arising and relating to the delivery of possession of the property purchased at a sale in execution of the decree will be questions relating to execution, discharge and satisfaction of the decree and such questions must be decided by the executing court and a separate suit is barred.