HIRAMBHO NATH BANERJI Vs. SAROJINI DEVI

JUDGEMENT

(1.) This is an application for stay of execution in first appeal from an order confirming an auction sale. In execution of a simple money decree the house property belonging to the applicant was put for sale and purchased by a third party. An application was filed for setting aside the sale but, it was dismissed and the sale was confirmed. Thereupon the sale certificate was duly granted and then the auction-purchaser applied to the Court below for delivery of possession under Order 21, Rule 95. In the meantime the judgment debtor has, applied from the order confirming the sale and has impleaded both the auction purchaser and the decree-holder.

(2.) A preliminary objection is taken to the hearing of this application on the ground that this Court has no jurisdiction to grant any stay. It is contended that Order 41, Rule 5 is not applicable to this case because the application for delivery of possession is not a proceeding under the order confirming the sale but is a separate proceeding : It is also contended that when Order 21, Rule 95 casts a duty upon the Court below to deliver possession and gives it no discretion this Court will have no inherent jurisdiction to order the stay and in any case we should not exercise that jurisdiction. It seems to us that the expression "proceedings under a decree or order" in Order 41, Rule 5(1) is very wide and would include proceedings taken on the basis of a decree or order It has to he conceded that the proceeding relating to the delivery of possession to an auction purchaser is not a proceeding in execution because the decree has been satisfied and the decree holder has received his money. This was the view expressed by Banerji, J. in Mi, Bhagwati V/s. Banwari Lal [1909] 31 All. 82, in which Aikman and Griffin, JJ. concurred. The proceeding in reality is one between the judgment-debtor and his representative the auction purchaser: see also Mohsin Raza Khan V/s. Haidar Bahsh .

(3.) It does not however follow that the proceeding is not one under the order confirming the sale. Once the sale has been confirmed the Court is bound to grant the sale certificate and Order 21, Rule 94 does not even require a previous formal application to that effect. The effect of the grant of the sale certificate which is a ministerial act is to entitle the auction-purchaser to apply for delivery of possession under Rule 95. Such application therefore is an application on the basis of the order confirming the sale and is consequent upon it. We are therefore inclined to hold that it can be treated as "a proceeding under the order" confirming the sale. There seems to be no reason to limit the meaning of that expression to proceedings which are expressly directed by the order itself.