HARGOVIND FULCHAND Vs. BHUDAR RAOJI

JUDGEMENT

(1.) This suit was instituted by the plaintiff to recover possession of the suit property which his father had bought at an auction sale in execution of a decree for money which he had obtained against the defendant. The sale was held on September 21, 1908, and was confirmed on October 29, 1908. Thereafter the sale certificate was issued by the Court. The defendant continued in possession and the plaintiff's father did not seek possession. When the plaintiff filed this suit on August 20, 1920, the defendant objected that it was barred by Section 47, Civil Procedure Code.

(2.) Both the lower Courts felt themselves bound to follow the decision of this Court in Sadashiv bin Mahadu, V/s. Narayan Vithal. (1911)1 L.R. 35 Bom. 452. The correctness of that decision, although it was not directly in-point, was doubted in Goba Nathu v Sakharam , where I stated that I would prefer to follow the decision of the majority of the Full Bench of the Allahabad High Court in Bhagwati V/s. Banwari Lal. (1908) I.L.R. 31 All. 82, F.B. We are now asked to decide whether the question between the plaintiff and the defendant is a question - relating to the execution, discharge or satisfaction of the decree" which would, under the provision of Section 47 of the Civil Procedure Code, have to be determined by the Court executing the decree and not by a separate suit. There are a very large number of decisions on the question which has given rise to a considerable divergence of judicial opinion.

(3.) It is considered by Mr. Justice Mulla in the 7 Edition of his Code at page 125 where he says:-- We are inclined to think that Section 47 does not apply to the case at all, not because the decree-holder purchaser is not a party to the suit within the meaning of Section 47--for we think he is such a party, but because the question as to delivery of possession cannot be said to be a question relating to the execution, discharge or satisfaction of the decree within the moaning of Section 47. The following are the main points of distinction between the two views:-- (1) According to the former view, that is, the view taken by the High Courts of Bombay and Madras and on some cases by the High Court of Calcutta, a decree-holder purchasor, who is resisted by the judgment- debtor in taking I lossession of the property purchased by him at the auction sale, can proceed only by an application under Order XXI, rule 95, coupled with Section 47, and such application should be made within three years from the date on which the sale becomes absolute. According to the latter view, that is the view taken by the High Courts of Allahabad, Patna and Lahore and in a large majority of cases by the High Court of Calcutta, he may proceed by an application under Order XXI, rule 95, or ho may proceed by way of suit. The period of limitation for a suit is twelve years from the date when the sale becomes absolute, so that even if the time for an application has expired, he may prosecute his remedy by way of suit.