BHAGWATI Vs. BANWARI LAL

JUDGEMENT

(1.) The facts of this case as found by the lower appellate court are as follows: In execution of a mortgage decree obtained by one Musammat Mohini against one Shankar Lal, the interest of the latter in certain property was sold and purchased in the name of the defendant Bansidhar as a benamidar for the decree-holder Musammat Mohini. On the 27 of November 1897 the sale certificate was issued to Musammat Mohini and she by a tamliknama, dated the 20 of September 1900, transferred her in crest to her daughter-in-law, the plaintiff Musammat Bhagwati. Bansidhar, the nominal purchaser, purported o resell the property to the defendant Ganga on the 27 of July 1897, and Ganga purported again to sell it to Musammat Mohini, but these last-mentioned sales may be left out of consideration as it is admitted by both Bansidhar and Ganga that Musammat Mohini was the real purchaser. The representatives of the mortgagor were in possession of the property at the date of the sale and they or their transferees have remained in such possession up to the present time. The suit out of which this appeal has. arisen was instituted on the 1 of September 1904, that is, about seven years after the date of the sale, for the recovery of possession of portion of the property, the subject-matter of the sale. Both the lower courts have held that the suit Is barred by the provisions of Section 244 of the Civil P. C..

(2.) In consequence of the conflict of authority in this Court on the question involved in the case, this appeal has been laid before a Full Bench. Section 244 prescribes that all questions arising between the parties to a suit, or their representatives, relating to the execution, discharge or satisfaction of a decree, shall be determined by the court executing the decree, and not a by separate suit. Two questions must be answered in the affirmative before we can hold that Section 244 applies to this case, namely (1) is a mortgagee, who in a suit for sale upon his mortgage applies to the court for and obtains leave to bid and buys the mortgaged property, amenable to the provisions of Section 244, and (2) is the plaintiff a representative of the decree-holder Musammat Mohini within the meaning of the expression representatives as used in the section

(3.) To take the first question, the argument in support of a negative answer to it was that as auction-purchaser the decree-holder Musammat Mohini occupied a different character from that of decree-holder, and that qua purchaser she was not a party to the suit, and therefore no question touching the execution of the decree arose between the parties to the suit or their representatives. It is said that it was a mere accident that the decree-holder became the purchaser and that she must be held to occupy the position of a purchaser who had no connection whatever with the suit. It was further contended that the proceedings in the suit determined so soon as the sale was confirmed, and that delivery of possession was outside and beyond the scope of the suit, and therefore it was not open to the plaintiff to apply for possession in the execution department and further that in any case the plaintiff was entitled to maintain a separate suit for possession.