ANNADA PRASANNA SEN Vs. SOMORUDDI MIRDHA

JUDGEMENT

(1.) This is an appeal by the judgment-debtor in execution proceedings, his contention being that the application for execution by the decree-holder is barred by limitation. The decision of this appeal depends entirely on the answer to the question whether an application by a decree-holder to be put in possession of property purchased by him at a sale in execution of his decree, is an application to the Court to take a step-in-aid of execution within the meaning of Clause 5 of Article 182 of the First Schedule of the Indian Limitation Act, 1908. Both the lower Courts, relying on the decisions of this Court in Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Pran Krishna v. Juramoni 1 Ind. Cas. 430 : 13 C.W.N. 694 have answered the question in the affirmative. For the appellant it is contended that an application by a decree- holder to be put in possession of property after a sale by the Court is made by him in his capacity as auction-purchaser and not as decree-holder and, therefore, is not an application for a step in-aid of execution. It is urged that on the sale of the property the execution proceedings come to an end, and consequently the decree holder, when applying to be put in possession, is not executing his decree. It is also pointed out that Rules 95 and 95 of Order XXI of the Code of Civil Procedure require an application for delivery of possession to be made by the purchaser. Our attention has also been drawn to Article 180 of the First Schedule to the Indian Limitation Act, 1903. The wording of this Article adds nothing to the argument based on the wording of Rules 95 and 96 of Order XXI, since the former would naturally be in the same terms as the latter. In support of the appellant s contention the cases Panchanan v. Nrisingha Prosad Roy 6 Ind. Cas. 264 : 11 C.L.J. 356 and Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 are cited. It is contended, that these decisions are at variance with the decisions on which the lower Courts have relied and we are asked to refer this appeal to a Full Bench for decision of this question. In my opinion we should follow the decisions in the cases of Sariatoolla v. Raj Kumar 27 C. 709 : 4 C.W.N. 681 and Iran Krishna v. Juramoni 1 Ind. Cas. 430 : 18 C.W.N. 694. Those cases are dearly in point and are decisions on the actual questions that arise in this appeal. In both cases on which the appellant relies the point for decision was different, namely, whether an application for confirmation of sale was a step-in- aid of execution. It is true that there are remarks in the judgments in these cases that such an application cannot be a step in-aid of execution because the application was made on behalf of the decree holder as auction-purchaser. But in the case of Umesh Chandra Dass v. Shib Narain 31 C. 1011 : 9 C.W.N. 193 the learned Judges, after remarking that an application made not by the decree-holder as such but by the auction-purchaser could hardly be said to be an application in aid of execution, proceed to give another and entirely different reason for dismissing the appeal. In the other case Panchanan v. Nrisingha Prosad Roy 6 Ind. Cas. 264 : 11 C.L.J. 356 the learned Judges, after pointing out that the application was made on behalf of the decree holder as auction-purchaser, add that no authority had been cited in support of the contention that such an application was a step-in-aid of execution. That case was decided in 1893. Had the question at issue been the same as in the present case, different considerations would have arisen and it seems to me quite possible that so much importance might not have been given to the difference between an application by the decree-holder as such and by him in his capacity of auction-purchaser. Though the argument based on this difference is plausible, it does not appear to me to be sound. Even though the decree-holder has become the auction purchaser, he has obtained no benefit from his decree until he gets possession of the property purchased by him and an application to be put in possession is, therefore, an application for a step in-aid of execution of his decree. This is the view that has been also taken by other High Courts in India: Moti Lal v. Makund Singh 19 A. 477 : A.W.N. (1897) 117; Lakshmanan Chattiar v. Kannanmal 21 M. 185 Sadashiv Mahadu v. Narayan Vithal 11 Ind. Cas. 987 : 35 B. 452 at p. 460 : 13 Bom. L.R. 661.

(2.) For these reasons and with this weight of authority behind it I think the decision of the lower Appellate Court is right and should be upheld. The apparent differences of opinion expressed by the learned Judges in the cases on which the appellant relies are not such as to require a reference to a Full Bench.

(3.) As my learned brother agrees with me as to the final order, though on other reasons, this appeal must stand dismissed with costs.