GOBA NATHU BAROLA Vs. SAKHARAM TEJU PATIL

JUDGEMENT

(1.) The plaintiff in execution of his decree purchased the suit property with leave of the Court. Not being able to get possession after his purchase, he brought this suit against the 1st defendant, his judgment-debtor, and the 2nd defendant, who claimed to have an interest in the property, but who did not fill the position of a judgment-debtor with regard to the plaintiff. The trial Court dismissed the suit as against both defendants on the ground that the plaintiff was the representative of the decree-holder, and the suit was barred under Section 47 of the Civil Procedure Code.

(2.) In appeal the decree of the trial Court dismissing the suit as against the 1st defendant was upheld, but the decree as against the 2nd defendant was set aside and the suit was remanded for trial.

(3.) The plaintiff has appealed against that part of the decree which dismissed his suit against the 1st defendant, The 1st defendant has not appeared, and we have not had the advantage of hearing what he might say on the question before us. No doubt in the case of Sadashiv v. Narayan (1911) I.L.R. 35 Bom. 452 : 13 Bom. L.R. 631 it was held by a Bench of this Court that a decree-holder by becoming a purchaser it a Court-sale did not cease to be a party to the suit within the meaning of Section 47 of the Civil Procedure Code, and, that, therefore, proceedings for delivery of possession of the property purchased by the decree-holder were proceedings in execution of the decree, and fell within the scope of Section 47 of the Civil Procedure Code. Now in this case if defendant 2 had not been a party to the suit, the facts of the case would have brought the suit within that decision. Here we have another party claiming title to the property purchased who was not a party to the original suit, and that, I think, distinguishes this case from Sadtiahiv v. Narayan. If the judgment of the lower appellate Court were to stand, it would follow that the plaintiff would have to proceed in execution proceedings against the 1st defendant, and file a suit against the 2nd defendant. The execution proceedings against the 1st defendant might result in his having to file another suit against the 1st defendant, if the matters in dispute between him and the 1st defendant could not be decide 1 except by means of a suit. That would be a very unfortunate result. For myself I feel inclined to doubt the decision in Sadashiv v. Narayan. I would prefer to follow the decision of the Full Bench of the Allahabad High in Bhagwati v. Banivari Lal (1908) I.L.R. 31 All. 82. However that may be, in this case I think I can come to the conclusion that although the plaintiff remains a party to the suit as against the 1st defendant, yet the 2nd defendant not being a party to the suit, the plaintiff s proper remedy in order to get possession of the property purchased at the Court-sale would be by filing a suit against both the 1st and 2nd defendants. By purchasing the property the plaintiff no doubt does not cease to be a party to the suit. But he fills quite a different capacity as auction- purchaser. It appears to me that it would be more correct to say that as auction purchaser he acquires a different set of rights which entitle him to come to the Court for protection by filing a suit, instead of proceeding in execution. I would, therefore, reverse the decree of the lower appellate Court dismissing the suit against the 1st defendant, and direct that the suit against both the defendants should be remanded for trial and adjudication on the merits. The appellant must have his costs of the appeal. Heaton, J.