MOHSIN RAZA KHAN Vs. HAIDER BAKHSH

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of the following circumstances: Two brothers, Ali Raza and Hasan Raza, agreed to divide their property. They had each of them incurred certain debts, and it was agreed between them that each should be responsible for discharging the debts incurred by him. The property allotted to Hasan Raza was subject to a mortgage created by Ali Raza, and this mortgage Ali Raza failed to discharge. Hasan Raza transferred his property by sale to Ismail, who paid off the mortgage and then proceeded to sue Ali Raza. In due course he got his decree in which was included half a chabutra. It may be as well to explain immediately here the nature of this chabutra. The northern portion of the chabutra was open to the air. On the southern portion there was a verandah. The chabutra was divided into half at the partition by a line running north and south. This left a portion of the open chabutra and a portion of the chabutra covered by the verandah to each of the brothers. The eastern half fell to Ali Raza, and the dispute has arisen out of the question whether, when Ismail got his decree, it covered the southeastern portion of the chabutra covered by the verandah as well as the northeastern portion of the chabutra which was open to the air. After obtaining his decree, Ismail sold it to Haidar Bakhsh, the present respondent. We are not concerned with the next proceedings till we come to 24th May 1923, when Haidar Bakhsh filed his second application for execution. The ensuing sale took place on 9 July 1923, when the decree-holder himselfpurchased. The whole decree was not thereby satisfied. On 12 September 1923, Haidar Bakhsh who, though he was the decree-holder must, in our view, be held to have beer acting in his capacity as auction purchaser, applied for possession under Order 21, Rule 95, and on 10 October 1923 got possession over half the chabutra. We have no information as to when or how trouble began to arise in regard to the south-eastern portion of the chabutra which was covered by the verandah, except such as we can obtain from the file of a suit which Haidar Bakhsh proceeded to institute On 19 December 1925, Haidar Bakhsh filed a suit against one Mohsin Raza, son of Hasan Raza, who also happened to be heir of Ali Raza. In that suit he asked for an injunction to restrain the defendant, the heir of Ali Raza, from using the south-eastern portion of the chabutra covered by the verandah. He also asked for the closing of a door on the south side of the chabutra through which the defendant used to come on to the south-eastern portion of the verandah. The date of the alleged cause of action was given as 1 December 1925. The trial Court gave Haider Bakhsh an injunction restraining the defendant from using the door for going on to either the northern or the southern portions of the chabutra which, including the verandah portion, it held to belong to the plaintiff. On 24 June 1926, the lower appellate Court modified this decree and restricted the injunction against the defendant to restraining their use of the north-eastern or open portion of the half chabutra, and held that the south- eastern verandah covered portion of the half chabutra belonged to the defendant, and was not included in the auction sale of Haider Baksh. From that decision a second appeal, No. 1533 of 1916, is at present pending in this Court.

(2.) The suit, of which we have just given the particulars, having ended in a decision that Haider Baksh had not bought the south-eastern verandah portion of the chabutra, he next proceeded, on 16 July 1926, to apply for the sale of that portion of the chabutra to satisfy the balance of the decree still owing to him. It is out of this application that the present proceedings have arisen. The application as drafted covered the whole of the half chabutra which had been allotted to Ali Raza, whether open or verandah covered, but it was admitted before the execution Court that the application must be restricted, in view of prior proceedings, to the verandah portion at the south-east. The judgment-debtor promptly filed objections, one of which was based on the plea of limitation. For the decree-holder it was urged that his application was not barred by limitation, and relied upon the decision in Moti Lal V/s. Makund [1897] 19 All. 477. The learned Subordinate Judge repelled this contention holding that decision had been overruled by the decision of a majority of the Full Bench reported in Bhagwati V/s. Bunwari Lal [1909] 31 All. 82, and holding the application to be barred by limitation he dismissed it. The lower appellate Court's attention was drawn to the later decision in Babu Ram v. Peare Lal [1919] 41 All. 479, and the Court somewhat reluctantly held itself bound by the later decision and holding that there was no (bar of?) limitation returned the case to the Subordinate Judge to proceed with the execution. The judgment- debtor has come in second appeal to this Court, and the sole question which really finally calls for our decision is whether we are prepared to accept and follow the decision of two Judges reported in Babu Ram V. Piare Lal [1919] 41 All. 479 and which followed the decision reported in Moti Lal V/s. Makund [1897] 19 All. 477 or whether we hold that we are bound by the decision of the majority of the Judges in Bhagwati V/s. Banwari Lal [1909] 31 All. 82.

(3.) An application for execution was made as we have stated above, on the 24th May 1923. The present application is dated the 16 July 1926, and it is, therefore, clear that application is barred by limitation unless something intervened between those two dates to save the period running. For the decree- holder it is contended that the expiry of the period of limitation is saved by the application which was made on the 12 September 1923, under Order 21, Rule 95, by Haider Baksh, who at that time enjoyed the dual capacities of decree- holder and auction-purchaser. The question, then, really arises whether an application under Order 21, Rule 95, by an auction-purchaser to recover possession is a proceeding in execution and a step-in-aid of execution when such application is made by the decree-holder who is also the auction-purchaser. It was held in the case of Babu Ram V/s. Piare Lal [1919] 41 All. 479, which was followed by the lower appellate Court in this case, that such a proceeding was a proceeding in execution and sufficed to save limitation. As we do not ourselves see any adequate reason for departing from, or suggesting another Full Bench in regard to, the decision in Bhagwati V/s. Banwari Lal [1909] 31 All. 82, it is necessary to examine the other two cases, to which we have referred, with some care. As regards the later case, Babu Ram V/s. Piare Lal [1919] 41 All. 479, it is only necessary to state that the learned Judges simply followed the decision in Moti Lal V/s. Makund [1897] 19 All. 477. They disposed of the decision in Bhagwati v. Banwari Lal [1909] 31 All. 82 with the single observation that the question for decision in that case was altogether different. Nothing further is set out in that judgment to indicate in what respect the decision in Bhagwati V/s. Banwari Lal [1909] 31 All. 82 differed from that then before the Court. We have therefore, had to again examine that well-known decision. The case referred to the Full Bench does not appear to have been safe out anywhere in the report in so many words;. but the question very clearly was whether, when an auction-purchaser, who happens to be also the decree-holder, desires to recover possession from a judgment-debtor, the question is one which falls within the scope of Section 47, Civil P.C., or not. The auction-purchaser had in fact filed a suit, and the majority of three Judges out of the five held that the suit did lie. The most lull judgment, of the three Judges and one which was fully adopted by the other two was that of Mr. Justice Banerji; and it is apparent from a consideration of that judgment that the three Judges held that the suit did lie and was not barred by Section 47 for two reasons: that, in the first place, the question between the auction-purchaser and the judgment-debtor was not a question arising between the parties to the suit or their representatives inasmuch as the auction-purchaser was not the representative of the decree-holder but of the judgment-debtor, and therefore, the question had really only arisen between the judgment debtor and his own representative. But the second reason for which Section 47 was held to be inapplicable and which, as it appears to us, is directly in point to the present case, is that such a proceeding as that in question, and in question in this case and in question in Babu Ram V/s. Piare Lal [1919] 41 All. 479 was not one in relation to execution. That opinion is expressed at length and after such consideration of the authorities at p. 100 of the report. In view of the remarks in Babu Ram V/s. Piare Lal [1919] 41 All. 479, we have examined the opinion of the Full Bench and the facts of that case to discover, if possible, where the suggested difference lay, and we have been unable to trace any such difference.