A lessee is not a representative of the judgment-debtor in an execution sale, and therefore the lessee's leasehold interest is not affected by the execution sale and subsequent purchase by the auction purchaser.

( 1 ) THIS is a plaintiff s appeal directed against the judgment of the Subordinate Judge, Srikakulam who reversed the decree passed in favour of the Plaintiff by the District Munsif Parvathipuram in O. S. No. 59 of 1957. The suit was laid under Order XXI, R. 103 C. P. C. The suit building was validly leased to the plaintiff more than 25 years ago by the Judgment-debtor in O. S. No. 61 of 1952 of the Sub-Court, Srikakulam. That suit was for recovery of a sum of money. In execution of the decree therein the decree-holder attached and brought to court-sale the right, title and interest of the judgment-debtor in the building in question. The respondent is the successful purchaser at the court auction. On the strength of this purchase at court-sale he duly obtained a sale certificate he applied for delivery of actual possession of the suit building. Actual delivery was resisted by the present plaintiff, who claimed to be in valid possession of the building in his own independent right as lessee under a lease granted to him about 25 years ago. This led the auction-purchaser-defendant to move the executing court under O. XXI, R. 97 for removal of obstruction. In spite of the opposition of the present plaintiff, the Court directed delivery of actual possession of the suit building to the auction-purchaser-defendant. The plaintiff therefore instituted the suit out of which this second appeal arises. His case was that his right and interest as a lessee validly in possession of the suit property was not affected by the execution sale and that therefore the auction-purchaser was not entitled to dispossess him. According to him all that the auction purchaser could get was symbolical delivery of possession as contemplated by O. XXI, R. 96. The defendant-auction purchaser set up several pleas in defence, the most important of which was that the suit was not maintainable under S. 47 of the Code of Civil Procedure. The trial Court overruled this objection as to the maintainability of the suit and gave judgment for plaintiff. On appeal the Subordinate Judge, Srikakulam reversed the decision of the trial Court, holding that a suit was not maintainable and that the plaintiff s remedy was to seek to work out of his rights by making an appropriate application under S. 47 C. P. C. In this view, the learned Subordinate Judge dismissed the plaintiff s suit. It is against this decision that the plaintiff has come up in second appeal to this Court.

( 2 ) THE short question for decision in this Second appeal is whether the plaintiff -appellant falls within the mischief of S. 47 C. P. C. It cannot be disputed that the preponderance of view of the Madras High Court, which is binding on this Court, is that proceedings regarding delivery of possession to a stranger auction-purchaser relate to execution, discharge and satisfaction of the decree within the meaning of S. 47 C. P. C. , vide : Veyindramuthu Pillai v. Maya Nadan, ILR 43 Mad 107 : ( AIR 1920 Mad Mad 324) (FB) ; Krishna Aiyar v. Subramania Aiyar, (1939) 1 Mad LJ 468 : ( AIR 1939 Mad 369) (FB) and Annamalai Mudali v. Ramasami Mudali, ILR 1941 Mad 438 : AIR 1941 Mad 161 (FB ). No doubt this view has not been shared by some High Courts. But this Court cannot depart from what has long been regarded by the High Court of undivided Madras as settled cursus curiae. The plaintiff -appellant cannot therefore successfully challenge the decision of the Court below on the ground that a question concerning delivery to the auction purchaser of the property obtained by him under a sale certificate is not a matter relating to execution, discharge or satisfaction of the decree. But this alone is not sufficient to bring the plaintiff within the purview of S. 47 C. P. C. It has to be shown further that he is the representative of the judgment-debtor. The old controversy as to whether a stranger auction-purchaser represents the decree-holder or the judgment-debtor is now only of academic interest, in view of the amende

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