Judgment

MUKHERJEA, J.:- This appeal by certificate from a judgment of the Calcutta High Court raises an important question as to whether after an auction sale in execution of a decree a decree-holder auction-purchaser can move the executing court for delivery of vacant possession of an immovable property or whether he has to file separate suit to get that possession. The short facts of the case are as follows. In May 1956 one Debidutt Bhagwati Prasad obtained a money decree against Harnandrai Badridas. In January 1958 Mr. S. Tibrewal, a member of the Calcutta Bar was appointed Receiver in an insolvency proceeding against one Durga Prasad Goinka, a partner of the defendant firm in respect of premises No. 99 and 128 Cotton Street, Calcutta for the purpose of selling those properties. On 3 April 1958 Mr. Tibrewal was also appointed receiver in execution of the decree obtained by Debidutt Bhagwati Prasad for the sale of the two premises. On 26 April 1958 the properties were put up to sale by auction and one Kanta Prosad Chotaria was declared the purchaser of premises No. 128, Cotton Street for Rupees 52,000/-. Kanta Prosad made a deposit of Rs. 13,000/- as earnest money. There were, it