SAVLARAM GANGARAM Vs. VISHWANATH ANANT

JUDGEMENT

(1.) The property of the judgment-debtor was sold in execution of a mortgage decree and was bought by the decree-holder himself. On coming to take possession he was obstructed, and he had to ask for the help of the Court under Order XXI, Rule 95. The contention of the judgment-debtor was that the property of which the decree-holder-auction-purchaser was trying to take possession had not all been included in the sale; and that question was decided against the judgment-debtor on the ground that it was at any rate included in the mortgage and therefore must be deemed to have been included in the mortgage decree and in the certificate of sale. The judgment-debtor now comes in appeal and is met by a preliminary objection that no appeal lies, since this is not a question arising under Section 47 of the Civil Procedure Code.

(2.) It appears that there is a conflict of decisions among the various High Courts as to a decree-holder who is also an auction-purchaser being still liable to be regarded as a party to the suit. If he is not a party to the suit, then of course Section 47 does not apply and no appeal would lie in such a matter, and it would be open to the auction-purchaser to sue independently of Section 47 and independently of any proceedings in execution. The view that he is not a party to the suit must perhaps be regarded as no longer tenable in view of the decision of the Privy Council in Ganapathy Mudaliar V/s. Krishnamachariar (1917) L.R. 45 I.A. 54 However that may be, the question is whether all the conditions governing Section 47 are satisfied in this particular case. Even if we assume for the sake of argument that an auction purchaser who is also a decree-holder can be regarded either as a party to the suit or as a representative in interest of the judgment-debtor and that the judgment-debtor is also a party to the suit, the question to fall under Section 47 of the Civil Procedure Code would have to be a question relating to the execution, discharge or satisfaction of the decree. We have the authority of a full bench of this High Court in Hargovind Fulchand V/s. Bhudar Raoji (1924) I.L.R. 48 Bom. 550 to show that a decree-holder-auction-purchaser seeking to get possession of the property which he has bought does so not in execution, of his decree but by virtue of a title acquired as purchaser, so that no question relating to the decree arises and Section 47 is not a bar to his suit. We do not know what the defence was on the merits, as the report is silent on that point. But prima facie we think that the question involved in giving an auction- purchaser possession of the property which he has bought cannot ordinarily be a question relating to the execution, discharge or satisfaction of the decree, unless the words "relating to" are unduly extended. After all in this case (and in most cases of the kind) the decree was satisfied not by the possession of the auction-purchaser but by the fact of the sale; and thereafter no question relating to the execution of the decree any longer remained. Even if it was found impossible for various reasons to give the auction-purchaser actual possession or even symbolical possession of the property, the fact would remain that the decree was satisfied by the sale.

(3.) We have been referred to the decision of the Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker (1921) L.R. 48 I.A. 155 where a long time after an auction-purchaser had taken possession of the property under his purchase the judgment-debtor tried to have the sale repudiated; and in that particular case their Lordships said that, if a mortgage decree included by oversight lands not subject to the mortgage and the lands were therefore sold at a court-sale and covered by the certificate of sale, it was open to the mortgagor to take proceedings under Section 47 within the period allowed, but that if such proceedings were not taken in time, the title under the certificate of sale would have to be regarded as unimpeachable. But that is not at all the position which we have here. The facts are not clearly stated in the judgment of the Privy Council, but it is clear that the judgment-debtor was raising a question as to the validity of the sale. It is true that just as in this case he was basing his case on the fact that the mortgage deed did not include the lands which were made the subject of the sale; but he was doing so in order to impeach the validity of the sale. Here the judgment-debtor is referring to the mortgage (and the learned Judge also is referring to the mortgage) not in order to decide upon the validity of the sale, which undoubtedly would be a question falling within Section 47 of the Code, but in order to see what property was-actually sold. That is an entirely different question and one which in our opinion and in the opinion of the full bench of this Court is not covered by Section 47 of the Code, because it is not a question relating to the execution, discharge or satisfaction of the decree, the decree having already been fully satisfied.