SANDU SAKUL MITHU THARAGANAR Vs. HUSSAIN SAHIB

JUDGEMENT

(1.) In this case the decree holder in a suit purchased certain lands at Court auction. An application made by him under Section 318 of the Code of Civil Pro- cedure for delivery of possession was dismissed. After his death further applications were made by his heirs. These applications wore also dismissed. The heirs sold the lands to the plaintiffs and the plaintiffs now sue the judgment- debtors for recovery of possession. The point is--is the suit barred by Section 244, Civil Procedure Code? This involves two questions: (1) Is the right of the plain-tiffs to recover possession of the lands, a question relating to the execution, discharge or satisfaction of the decree? (2) If it is, does the question arise between the parties to the suit in which the decree was passed, or their representatives?

(2.) As regards the first question, if the matter were res-integra, I should be disposed to hold that the question is not one" relating to the execution, discharge or satisfaction of the decree" It has been held, however, in a series of cases decided by this Court, that pro-ceedings between a decree-holder who has purchased at Court auction and the judgment-debtor are proceedings " relating to the execution, discharge, or satisfaction of the decree." See Viraraghava v. Venkata I.L.R., S.M., p. 217, Vallathan V/s. Panguni I.L.E., 12 M. 454, Mutha v. Appasami I.L.R., 13 M., 504, Lakshmanan Chettiar V/s. Kannammal I.L.R., 24 M. p. 185, Kasinatha Aiyar V/s. Uthamansa Rowthan I.L.R., 25 M. 529 and Kattayat Pathumma V/s. Raman Menon I.L.E., 26 M. 740. The same view was taken by the Calcutta High Court in Madhusudan Dass V/s. Govinda Pria Chowdharani I.L.R., 27 C., p. 34. Although the decisions on the point are not altogether uniform, the balance of authority certainly supports the view taken by the Lower Appellate Court in this case.

(3.) On principle I do not think any distinction can be drawn be-tween a case where the proceedings are between the decree-holder who has purchased at Court auction and the judgment-debtor and a case where, as here, the proceedings are between a party who derives title from a decree-holder who has purchased and a judgment-debtor. The argument on behalf of the appellants was that Section 318 only provides for the making of an order in favour of the certified purchaser and that there is no provision of law whereby a party who derives title from a decree- holder who has purchased, can obtain delivery of possession from the judgment- debtor by execution proceedings in the suit in which the decree was obtained. This may be so, but it does not follow that proceedings between the party who derives title from the decree-holder who has purchased and the judgment-debtor are not proceedings relating to the execution, discharge or satisfaction of the decree. It is open to the party who proposes to take a conveyance from the decree-holder who has purchased to stipulate that the latter shall take the necessary steps to obtain delivery of possession under Section 318.