ALLIANCE BANK OF SIMLA LTD Vs. FBPOWEL

JUDGEMENT

(1.) This is an execution first appeal by the decree-holder, the Alliance Bank of Simla, Ltd. in liquidation through the liquidators. The appeal is directed against an order passed by the learned Civil Judge of Saharanpur in the course of an execution proceeding allowing an objection made by the respondent F. B. Powel that he had been wrongly impleaded by the appellant decree-holder as a representative of the judgment-debtor. The relevant facts of the case may briefly be stated as fol. Lows : The appellant held a simple mortgage from one M.G. Powel. It is not disputed that this mortgage was made prior to 1 March 1928. One Mohammad Ismail obtained a simple money decree against the mortgagor on 23 January 1928 and in execution of that decree attached the mortgagor's interest in the property which was the subject of the mortgage in favour of the appellant. On 1 May 1928, the appellant filed a suit on the foot of the mortgage without impleading Mohammad Ismail as a party thereto. The preliminary decree in the suit was passed on 6 June 1928 and it was made final on 12 April 1929. It appears that in the meantime Mohammad Ismail had pursued the execution of his simple money decree and had put the mortgaged property to an auction sale and had purchased it himself. This sale was confirmed by the Court on 23 April 1929, that is subsequent not only to the preliminary decree obtained by the appellant, but also the final decree. On 8 May 1929 Mohammad Ismail transferred the rights which he had so acquired to the respondent F.B. Powel under a sale deed. On 25 March 1935 the appellant applied for execution of his mortgage decree and impleaded the respondent as a representative of the judgment-debtor. The respondent objected that he should not have been so impleaded, and that objection has been allowed to prevail by the learned Civil Judge of Saharanpur. Hence the present appeal.

(2.) The argument on behalf of the appellant] is that Mohammad Ismail was a representative of the judgment-debtor in the eye of the law and his interests having passed to the respondent, the latter occupies the same position and was consequently rightly impleaded in the course of the execution proceeding. Reliance is placed principally upon the Pull Bench case in Gulzari Mal V/s. madho Ram (1904) 26 All. 447, which has been followed in a later case of this Court, Ram Autar Sahu V/s. Bate Krishna . In the Pull Bench case Banerji J., who was one of the learned Judges who decided that case, made the following observations which are relevant to the present case: It seems to me that every purchaser of the judgment-debtor's interest who is bound by the decree is a representative of the judgment-debtor within the meaning of the Section, whether he is a purchaser under a private sale from the judgment-debtor or a purchaser at a compulsory sale held in execution of a decree obtained against the judgment-debtor. I can see no distinction in principle between the case of a purchaser under a private sale and that of an auction-purchaser, provided that the decree in execution can be en-forced against him, In my judgment, the word "representative" in Section 244 means a person against whom the decree can be enforced either as the legal representative of the judgment-debtor or as his representative in interest. In Radha Madhub holder V/s. Manohur Mukerji (1888) 15 Cal. 756 their Lordships of the Privy Council held that a person who had, during the pendency of a mortgagee's suit for sale, purchased the mortgaged property in execution of a simple decree for money, was bound by the proceedings and the decree in the suit. Such a purchaser is undoubtedly the representative in interest of the judgment-debtor as regards the property purchased by him.

(3.) The authority of this case was followed in the later case in Ram Autar Sahu v. Bate Krishna in which the learned Judges of this Court held that an auction-purchaser purchasing property at a sale in execution of a simple money decree against a judgment-debtor whose property has been ordered to be sold in a mortgage suit, is a representative of the judgment-debtor within the meaning of Section 47.