NUR MUHAMMAD Vs. SHEO NARAIN

JUDGEMENT

(1.) The main question raised in this appeal is whether a claim for possession of property purchased by a decree-holder in execution of his own decree can be enforced by a separate suit, or whether such a suit is barred by the provisions of Section 244 of the Civil P. C.. The property of which possession is sought to be recovered falls a little short of a 4-anna undivided share of a certain village which was purchased by the decree-holders on the 20 of April 1895. That property is in the possession of the appellant Sheo Narain under a deed of gift from the widow of the judgment-debtor. No steps were taken by the purchaser to obtain possession until the mon February, 1902, that is, nearly seven years after the date of the purchase, when he applied to the Court for possession under Section 318 of the Code. That application was rejected as being barred by limitation on the 1 of November 1902. "The present suit was instituted in 1904 for a declaration that the share of the property in question was not subject to a mortgage which had been set up in a prior suit by Sheo Narain and also for possession of it as unincumbered property.

(2.) The Court of first instance dismissed the plaintiffs claim, holding that the share in question was not unincumbered and relying in support of his decision upon the memorandum of bid which was prepared by an Amin in the office of the Deputy Collector, from which it appeared that the property sold was subject to a mortgage for a sum of Rs. 148. On appeal the decision of the Court of first instance was reversed, and thereupon a second appeal was preferred to this Court. The learned Judge before whom the appeal came upheld the decision of the lower appellate Court, holding that there was no force in the contention raised on behalf of the appellant in that Court, that the suit was barred by the provisions of Section 244 of the Civil Procedure Code. He observes in the course of his judgment: "The mere fact that the auction purchasers or their representatives failed to apply within time to be put in possession under Section 318 of the Code of Civil Procedure does not deprive them of their right to bring a regular suit" and then quotes as an authority for this view the case of Seru Mohan Bania v. Bhagoban Din Pande (1883) I.L.R. 9 Calc. 602 and Kishori Mohun Roy Chowdhry V/s. Chunder Nath Pal (1887) I.L.R. 14 Calc. 644. In neither of these cases was the purchaser the decree-holder, as was the fact in the case before us. But there is no doubt that according to some early rulings the decision of the learned Judge would have been correct. Lately, however, several oases have come before this and the other High Courts in which the early rulings have not been followed. The earliest of these to which we need refer is the case of Madhusudan Das V/s. Gobinda Pria Chowdhurani (1899) I.L.R. 27 Calc. 34, in which it was held by Macpherson and Stevens, JJ., that proceedings for the delivery of possession to an auction purchaser, who was also the decree-holder, after sale in execution of her own decree, were proceedings in execution of the decree, and that when application for possession was resisted by the legal representative of the judgment-debtor on the allegation that portions of the property belonged to him and not to the judgment- debtor, the question raised came under section, 244 and must be decided under that section and not by a separate suit. The next case to which we would refer is that of Kattayat Pathumayi V/s. Raman Menon (1903) I.L.R. 80 Mad. 740, in which a similar view was taken, it being held that proceedings taken by an auction purchaser to obtain possession of property purchased by him at a sale in execution of his own decree related to the execution, discharge or satisfaction of the decree within the meaning of Section 244 and that a separate suit for possession was not maintainable. The question again came before this Bench in the case of Kalyan Singh V/s. Thakur Das Weekly Notes 1906, p. 87, in which the question was carefully considered and the decision of the Calcutta and Madras High Courts was followed. So far therefore as we are concerned the question is concluded by authority. We do not think that we are unduly extending the scope of Section 244, and we say this with the more confidence, in view of the observations of their Lordships of the Privy Council in recent cases as regards the object and meaning of that section, in which they express approval of the facts that the Courts in India have not placed any narrow construction on its language: see Prosunno Coomar Sanyal V/s. Kali Das Sanyal (1902) 19 I.A. 169 : S.C. I.L.R. 19 Calc. 683.

(3.) For these reasons we must allow the appeal and dismiss the suit with costs in all Courts.