Sreenath Ghose vs Roma Nath Santra and Others

Maclean, C.J.—I do not think that an appeal lies in this case. I am unable to accept the argument of the learned vakil for the Appellant that the expression " representative of a party " in the last paragraph of sec. 244 of the CPC means the representative of a party to the execution proceedings as well as a party to the suit. The term " party " in the last paragraph, must, I think, refer to the parties mentioned in the preceding part of the section, and that is, "parties to the suit," and if this be so, the expression "representatives of a party" in the last paragraph must mean representatives of a party to the suit, which the present Appellant is not, being a purchaser from the auction-purchaser. It is conceded that unless the case fall within sec. 244 no appeal will lie, there being no provision in the CPC for any such appeal. This being so, the appeal must be dismissed with costs--2 gold mohurs.

Banerjee, J.

I am of the same opinion. The question in this appeal is, whether the assignee of an auction-purchaser is entitled to be made a party in the proceedings instituted by the application of the judgment-debtor after confirmation of the sale, for setting the sale aside on the ground of fraud and irregularity. The first Court held that the assignee was not entitled to be made a party to such a proceeding. Thereupon, an appeal was preferred, and the lower Appellate Court has rejected the appeal.

In second appeal it is contended that the Courts below were wrong in holding that the assignee of the auction-purchaser, under the circumstances of this case, was not entitled to be made a party, in addition to the auction-purchaser himself. Whatever the position of the assignee of an auction-purchaser may be, a difficulty arises in the way of our giving effect to the Appellant''s contention, as no appeal lies against the order of the Court below. It is sought on behalf of the Appellant to make out that there is a right of appeal by bringing the case within the last paragraph of sec. 244 of the Code of Civil Procedure. It is argued by the learned vakil for the Appellant that the question whether the assignee of the auction-purchaser, as the representative of the auction-purchaser, can be a party to the execution proceedings, is a question that is contemplated by the last paragraph of sec. 244, and if that bo so, then, by the definition of the term decree in sec. 2 of the Code of Civil Procedure, an order determining that question would be a decree. But does the question come under the last paragraph of sec. 244 ? The answer to that question depends on whether the term "party" in that paragraph means a party to the suit, or a party either to the suit or to any subsequent proceedings in execution. I am clearly of opinion that the term has the former meaning and not the latter. That appears clear from the fact of the last paragraph being ancillary to clause (c) of the section, which says that any questions in addition to those specified in clauses (a) and (b) arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree or to the stay of execution should be determined by the Court executing the decree and not by separate suit. The term " party" in the last paragraph of the section does not stand alone, but the last paragraph says that " if a question arises as to who is the representative of a party for the purposes of this section," the Court may either stay execution until the question has been determined by a separate suit, or determine the question itself. That clearly shows that the last paragraph is merely ancillary to clause (c) of the section, and the term "party" as used in it means a party to the suit.