Ramratan vs Chauwamal

Shivdayal, J.—This second appeal arises out of a suit for possession of a house which the respondent had purchased in a courtsale, in execution of his own decree against the appellant. The material facts are that on May 2, 1940 the sale was made absolute in favour of the decree-holder. On April 19, 1941 the Sale certificate was granted to the decree holder purchaser. On April 10, 1942 he applied to the executing court for delivery of possession of that house to him but eventually the execution was dismissed for default. Then the decree-holder purchaser brought this suit for possession. The suit was resisted by the judgment-debtor on the ground that the suit was barred. This objection did not find favour either with the trial judge or with the first appellate Court.

In this second appeal the only question to be decided is whether the suit is barred by sec. 234 of the Gwalior Zabta Diwani (Gwalior State Code of Civil Procedure) which was then in force. Sec. 234 of Gwalior Zabta Diwani corresponds to Sec. 47 of the Indian Code of Civil Procedure. There is however, this difference that the Gwalior Code provides that a dispute with the auction-purchaser relating to the execution, discharge or satisfaction of the decree must be determined by the Court executing it while u/s 47 of the Indian CPC there is a conflict of decisions on that point. In the present case, therefore, it is not disputed that section 234 is applicable provided it is found that the dispute in the suit is one which could be determined by the executing court, as a question relating to execution, discharge or satisfaction of the decree.

The question whether the dispute between the auction-purchaser and the judgment-debtor relating to the delivery of possession is a matter relating to execution, discharge or satisfaction, has been the subject of great controversy and reported decisions on the point are not uniform. But where a decree holder is himself an execution purchaser the law is settled, so far as this Court is concerned. In the case of Mst. Semabi Vs. Ganpatrao Pande (I.L.R. 1938 Nag 583), a Division Bench has held that a dispute relating to delivery of possession between the decree-holder purchaser and the judgment-debtor resisting possession is one relating to execution, discharge and satisfaction of the decree within the meaning of section 47 of the Civil Procedure code. To the same effect is the decision reported in ILR 1952. Nag 150 (Sec also AIR 1917 Nag 94). The ratio decidendi of the above authorities equally applies to section 234 of the Zabta Diwani because it is in no way different from section 47 of the Code on the question in hand.

There is however, one decision AIR 1932 140 (Nagpur) in which Macknair J.C. took a contrary view relying on a Full Bench decision of the Patna High Court and another Full Bench decision of the Oudh Chief Court. But in view of the Division Bench decision in Mst. Semabi, I cannot follow that decision.

I am also aware of a decision of the Allahabad High Court reported in ILR 1937 All 921. That judgment of the Full Bench was delivered by Suleimin, C.J. taking a contrary view. That decision was followed in ILR 22 Lah 91, ILR (1945) 26 Lah 252 ) Full Bench) and in another Full Bench of the Allahabad High Court in Mst. Suraj Dei Vs. Mst. Gulab Dei, But for the same reason that decision also cannot be followed in this Court.

I must also notice a Full Bench decision of the Patna High Court in Tribeni Prasad Singh and Others Vs. Ramasray Prasad Chaudhari and Others, where the question hat been elaborately discussed and it was held that in such a case execution terminates with the sale of the property and as such be cannot raise any question relating to the execution, discharge or satisfaction of the decree within the perview of section 47 of the Code in the widest sense of the term ''relating to'' as meaning ''connected with Hence a simple suit for possession by decree-holder purchaser will not be barred by Section 47 of the Code. But in view of the binding precedent ( ILR 1938 Nag 583) I cannot apply try mind to the question independently.

The result of this discussion is that the decree-holder purchaser could not bring this suit as the same was barred by section 234 of Gwalior Zabta Diwani.

This appeal is, therefore, allowed, the judgments of both the courts below are set aside and the respondent''s suit is dismissed. In the circumstances of the case the parties shall beat their own costs throughout. I certify that this is a fit case for Letters Patent Appeal under Clause 10.