BALAJI KASHINATH Vs. B. B. ANANDRAO

JUDGEMENT

(1.) IN this case the non-applicant was the decree-holder and, at the Court sale held on 10th March 1922, he became the auction-purchaser of the property. The first application for possession was filed on 25th October 1922, but eventually this application was withdrawn on 20th March 1924. The present application for recovery of possession was filed on 19th September 1925, and the present applicant's contention is that the second application for possession was barred inasmuch as it was made more than three years from the confirmation of sale: vide Article 180 of the Schedule to the Limitation Act. Reliance in this connexion has been placed on the decisions contained in Sultan Sahib Marakayar v. Chidambaram Chettiar [1909] 32 Mad. 136, Sasi Bhusan Mookerjee v. Radha Nath Bose [1914] 19 C.W.N. 835, Bhagwati v. Banwari Lal [1909] 31 All. 82 and Kamal Nain Singh v. Kesho Prasad Singh A.I.R. 1922 Pat 310.

(2.) THE question whether such an application is to be regarded as a step in execution of the decree, or as an application of the kind contemplated in Article 180 referred to above, has been the subject of much judicial interpretation and it is noticeable that, even in the Full Bench case of the Allahabad High Court quoted above, the learned Chief Justice and one Justice dissented from the view taken by their brothers.

(3.) THE point at issue has recently been considered most exhaustively by a Full Bench of five Judges of the Calcutta High Court in Kailash Chandra Tarapdar v. Gopal Chandra Poddar A.I.R. 1926 Cal. 793. The majority of the Judges, with only a single dissentient, were of opinion that an order on an-application under Order 21, Rule 95, Civil P.C., by an auction-purchaser who is also decree-holder, is an order under Section 47, Civil P.C. The reasoning of the majority of the Judges is in my opinion conclusive on the point: the execution sale was no doubt confirmed, but the sale cannot be said to be complete until possession is conferred upon the decree-holder who was auction-purchaser in this case. It is noticeable that Cuming, J., the dissenting Judge, rested his view on two considerations: (1) that the auction-purchaser, even although decree-holder, is not a party to the suit; and (2), that an application under Order 21, Rule 95, is not a matter relating to the execution, discharge or satisfaction of the decree. With all deference I am unable to understand why the decree-holder ceases to be a party to the suit merely because the sale has been confirmed and it would be, in my opinion, anomalous to refuse to recognize his real position solely because he has himself purchased property sold in execution of his decree. On the second point I am unable to see any good grounds for holding that a decision in proceedings relating to delivery of possession is not a question relating to the satisfaction of the decree.