SETH KEDAR NATH Vs. KARUN CHANDRA SINHA

JUDGEMENT

(1.) In this case the judgment-debtor respondent had owned several properties which were divided in a partition suit and two items described as Anupshahr Banjar No. 15 and Anupshahr Khadar No. 16 as well as a kothi with a garden and a kuohery house in the same town were allotted to his share. In 1925, along with other properties, he made two mortgages of the properties Anupshahr Banjar and Anupshahr Khadar (Nos. 15 and 16) without specifying whether they inoluded or exoludad the kothi and the kuohery, which were situated within the area of No. 15. In 1927 a suit was brought for sale on the basis of both these mortgage deeds and a decree was obtained which was made final and was then executed on 21st May 1932. Some of the other properties were sold at auction and purchased by the decree-holder with which we are not concerned in this appeal. On 30 July 1932 the properties Banjar No. 15 and Khadar No. 16 were sold at auction and purchased by the decree, holder; the sale was confirmed and a sale certificate was granted to the deoreo-holder auction-purchaser. It is to be noted neither in the plaint nor in the mortgage-decree nor in the proclamation of sale nor in the sale certificate was there any specific mention of the kothi or the kuohery. The properties sold were described as Anupshahr Banjar No. 15 and Anupshahr Khadar No. 16. On 28 Maroh 1933 the decree-holder purchaser applied under Order 21, Rule 95, and in the application he described the properties as Anupshahr Banjar and Anupshahr Khadar. Delivery of possession was effected under the order of the Court through the Court amin and the purchaser executed the dakahalnama on 21 April 1933 admitting that possession of the properties purchased by him had been delivered to him by the amin. The decree was to that extent satisfied.

(2.) On 2 February, 1934 the decree, holder purchaser filed ah application out of which the present appeal has arisen claiming possession over the kotbi, bagh and the kuchery in particular, alleging that the amin in the previous year had omitted to deliver possession to him of these properties and the Court should therefore order that the possession of the same should be delivered to him. There was no suggestion that there had been any resistance by the judgment-debtor. The application did not specify under which section or rule it was filed. The judgment- debtor filed an objection headed as an objection under Section 47, Civil P.C., and pleaded that the properties claimed had never been mortgaged nor sold and that the decree-holder purchaser was not entitled to possession over these properties. The Court after hearing the parties dismissed the application of the decree-holder holding that these properties had in fact been excluded from the mortgage deed, the suit, the decree and the auction sale. The decree-holder purchaser preferred this execution first appeal to this Court. A preliminary objection was taken to the hearing of this appeal that no appeal lay inasmuch as the dispute did not come under Section 47, Civil P.C., at all. The Bench before whom the case came up for hearing referred the following question to this Full Bench for answer: Is a question between the auction-purchaser who is also the decree- holder in a mortgage suit and the judgment-debtor in that suit as to what passed under the auction sale and arising in an application by the auction-purchaser for possession of the property sold a question between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof?

(3.) The question which arises in this case is certainly a difficult one, because there has undoubtedly been a conflict of opinion in the High Courts in India; but so far as this Court is concerned, the opinion has been consistently expressed which is, against the appellant. It is to be considered how far those decisions are affected by the two decisions of their Lordships of the Privy Council to which reference will be made hereafter.