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Bombay High Court
PATEL
Kanji Karsandas Thakkar - Appellant
Versus
Lala Ambu Patil - Respondent
Decided On : 12/19/1966
CIVIL PROCEDURE CODE - ORDER 21, RULE 95 - APPEAL - COMPETENCY - AUCTION-PURCHASER - WHETHER A PARTY TO THE SUIT - EXPLANATION TO SECTION 47 - SCOPE - POSSESSION OF PROPERTY PURCHASED AT EXECUTION SALE - WHETHER RELATES TO EXECUTION, DISCHARGE OR SATISFACTION OF DECREE.
Fact of the Case:
The plaintiff filed a suit for recovery of monetary dues from the defendant. After a decree was made, a Darkhast was filed for sale of the property. The property was sold in execution proceedings and purchased by the plaintiff. The defendant took an appeal to the District Court and it was dismissed. The plaintiff filed an application for possession, which was granted by the trial Court. The defendant filed an application for recalling of the order on the ground that the application was barred by limitation. The trial Court held that Article 134 did not apply, but Article 137 applied and confirmed its earlier order. The defendant took an appeal to the District Court, but the appeal was dismissed. The defendant filed a second appeal to the High Court.
Finding of the Court:
The High Court held that the second appeal was incompetent. The Court held that the dispute as to possession of the property purchased at the execution sale could not be regarded as a matter connected with the execution, discharge or satisfaction of the decree. The Court also held that the amendment to Section 47 of the Civil Procedure Code, which added the explanation that a purchaser at a sale in execution of a decree is deemed to be a party to the suit, was not intended to affect the principle that a dispute as to possession of the property purchased at the execution sale does not relate to execution, discharge or satisfaction of the decree.
Issues: Whether a second appeal is competent in a dispute as to possession of the property purchased at an execution sale.
Ratio Decidendi: A dispute as to possession of the property purchased at an execution sale does not relate to execution, discharge or satisfaction of the decree. Therefore, an auction-purchaser is not a party to the suit for the purpose of Section 47 of the Civil Procedure Code, and a second appeal is not competent in such a dispute.
Final Decision: The second appeal was dismissed.
2. Mr. Divekar contends that the matter falls squarely within Section 47 of the Civil Procedure Code and, therefore, a second appeal is competent. Originally, there was a conflict whether or not an auction-purchaser could be regarded as a party to the suit in relation to some disputes which arise between the parties. Some Court held that as he purchases the property in the sale in execution, he may as well be regarded as a party to the suit since he takes the property of the judgement-debtor and if the question arising in the dispute between him and any of the parties related to the execution, discharge or satisfaction of the decree, then it must be decided under Section 47 of the Civil Procedure Code. On the other hand, quite a few other Courts took the view that an auction-purchaser could not be regarded as a representative of the judgement-debtor and as such a party to the suit. By the amendment to Section 47 of the Code, the explanation was added, by which it was provided, amongst other things, that a purchaser at a sale in execution of a decree is deemed to be a party to the suit. Mr. Divekar contends that the question in issue now between the parties., that is recovery of possession by the auction-purchaser, relates to at least execution of the decree and, therefore, as the auction-purchaser is party under the explanation to Section 47, the order of the trial Court must be regarded as an order under Section 47 and, therefore, appealable as such.
3. In my view, the contention is not sound. There were several kinds of disputes raised on the entry of an auction-purchaser which could be regarded as relating to the satisfaction, discharge or execution of the decree, and yet could not be tried under Section 47, C.P. Code, because some Courts held that an auction-purchaser could not be regarded as a party to the suit, and it is only, in my view, in order to resolve this conflict that the amendment of the section was brought about. In order, however, that this explanation should apply, the disputes between the parties must be such as relate to execution, satisfaction or discharge of the decree. The present dispute as to possession of the property which the auction-purchaser has purchased can in no sense be regarded as a matter connected with the execution, discharge or satisfa
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