NARSINHBHAT CHINTAMANBHAT Vs. BANDU KRISHNA KULKARNI

JUDGEMENT

(1.) The present appeal, which is brought by the 3rd defendant in the suit, arises out of the same proceedings as those which have been described in the appeal just decided Ante, p. 481. The facts already noticed it is unnecessary to recapitulate. It is enough to refer to the following additional facts. In 1884 one Ramabai, the widow of a deceased coparcener in the family of the defendants Nos. 1 and 2, obtained a decree for maintenance against defendants Nos. 1 and 2 and another member of the family. That decree provided for payment of arrears of maintenance, and for future maintenance, and it directed that if the defendants failed to pay rogularly, then the plaintiff Ramabai might take possession of certain lands, and if the defendants failed to pay the maintenance, or to put the plaintiff Ramabai in possession of the lands, then the defendants would be liable personally, and their immoveable property would also be answerable for the decree. In 1898 Ramabai filed a Darkhast to recover the maintenance due by attachment and sale of the defendants Inarni rights in the village of Ashte. In pursuance of this Darkhast these Inami rights were sold, and, on the 4th September 1901, they were purchased by the present appellant, the 3rd defendant. On the 6th of November 1901, the sale was confirmed.

(2.) Now in regard to the position of the plaintiff, he, as I have already stated in the foregoing appeal, obtained a decree on an award on the 17th November 1897. Among the properties put in mortgage by that decree was this village of Ashte. On the 4th January 1901, the plaintiff presented an application for execution, and as the result of it this village of Ashte was put to sale by the Court, and, on the 6th January 1903, was purchased by the plaintiff. The sale was confirmed on the 11th July 1903. The defendant No. 3 subsequently applied for possession in virtue of his purchase. He was resisted by the plaintiff, and the plaintiff s obstruction was in 1905 removed by the Court. Thereupon the plaintiff filed Suit No. 355 of 1905 against the 3rd defendant for a declaration that the plaintiff s title as auction-purchaser had priority over the defendant s title. That suit after some vicissitudes was ultimately dismissed. No appeal appears to have been presented by the plaintiff, but on the 2nd December 1909 he presented this present Darkhast in which he joined the 3rd defendant for the first time.

(3.) On behalf of the 3rd defendant Diwan Bahadur Rao s first contention is that under Section 47 of the present Code, his client waa not a proper or a permissible party to these proceedings. Other objections also were raised by the learned pleader, but as, in my opinion, he succeeds upon this first point, it is unnecessary to consider the other contentions. This objection really depends upon the answer to the small question whether the auction-purchaser is or is not a representative, within the meaning of Section 47 of the Code, of the judgment- debtor. Mr. Rao contends that he is not, and if that contention is justified, then the proceedings as against the 3rd defendant were clearly without authority. It seems to me that by a long course of decisions of this High Court, we are now committed to the view that an auction-purchaser is not a representative of the judgment-debtor within the meaning of Section 47 of the Code. If that view is wrong, it must be left to the Legislature to correct it. Certainly we could not now correct it. Nor do I think the question is one which needs reference to a Full Bench, for it appears to me, with all respect to the learned Judges of the Allahabad and Calcutta High Courts, where the other opinion has been accepted, that there is at least as much to be said in favour of the Bombay view as in favour of the contrary view. The decisions to which I refer are Gulzari Lal v. Madho Ram (1914) I.L.R. 26 All. 447 and Ishan Chunder Sirkar v. Beni Madhub Sirkar (1890) I.L.R. 24 Cal, 62, v. n. In Madras, however, the decision has gone the other way : see Nadamuni Narayana Iyengar v. Veerabhadra Pillai (1910) I.L.R. Mad. 417. I quite concede that the word " representative" occurring in Section 47 cannot be restricted to the sense of the phrase " legal representative", as that phrase is specially defined in Section 2, Clause (ii), of the Code. It still, however, remains to be considered whether the auction-purchaser at a Court-sale can fall within the definition.