NATHU HARISHANKAR Vs. S. FATUSA

JUDGEMENT

(1.) 1. The appellant, who is a judgment-debtor, appeals against a decision of the District Judge, Nimar, allowing a fresh application for execution. The facts are briefly as follows: The respondent, who had a decree against the appellant, put his property to auction in execution of the decree and himself purchased it at the auction sale. After the purchase the respondent made an application under Order 21, Rule 95, for delivery of possession of the property, and a warrant for possession was issued, on 27th April 1931, with instructions that possession might be delivered by breaking the lock of the house, if necessary. The warrant however was not executed. The case was then fixed for 4th July 1931, On 4th July a report was received that resistance was offered by Bhimashanker and Mt. Jankibai and that possession was not delivered. The report was dated 9th May 1931. The Judge held that an application under Order 21, Rule 97, was barred by limitation and the respondent applied for a fresh warrant for possession. The question was then raised whether such an application could be entertained, and the Judge held, following Keeri Narain v. Abul Hasan (1904) 26 All 365, that it could not, and dismissed the application with costs. On appeal however the District Judge set aside that order and found that a decree-holder, who is himself the auction-purchaser, was not debarred from making a fresh application for execution.

(2.) THE only question to be decided, then, in this appeal is whether the view of law taken by the District Judge is correct. I am of opinion that it is, and, as noted by the District Judge, in the Allahabad case the purchaser was not the decree-holder. That seems to me to make a vital difference in the case, and I find myself in complete agreement with the view expressed by Findlay, J. C., in Balaji Kashinath v. Anandrao, A. I. R. 1927 Nag. 294, that a decree-holder, who is an auction-purchaser, occupies a dual position; that he is from one point of view the auction-purchaser applying to be put in possession of the property while, from another point of view, he is the decree-holder claiming to have his decree fully satisfied. An auction-purchaser is no doubt bound by Order 21, Rule 95 and Rule 97, as well as by Article 167, Lim. Act. A decree-holder on the other hand can, I think, fall back upon his decree and, if after purchasing the property he is resisted and delivery of possession cannot be given owing to such resistance, he may either apply under Order 21, Rule 97, or he may make a fresh application for execution. The District Judge, has also, I think, rightly followed the view expressed in Muttia v. Appasami (1890) 13 Mad 504.