JAGAT NARAYAN.—This is an execution second appeal by the judgment-debtor against an order of the executing court directing delivery of possession to the decree-holders-auction-purchasers against him under order 21, rule 95 C.P.C. which was confirmed on appeal by the District Judge, Jodhpur.

2. The judgment-debtor executed a possessory mortgage in favour of the decree-holder on 2-3-54 and took the property on lease on 3-3-54 by executing a rent-note. The decree-holders instituted a suit for sale on 22-4-58 in which a final decree was passed on 25-11-60. The mortgaged property was auctioned on 12-1-62 in favour of the decree-holders. The sale was confirmed and a sale certificate was issued in their favour. They then applied for delivery of possession under Order 21, rule 95 C.P.C. The judgment-debtor filed an objection that he cannot be evicted as he was a tenant of the mortgaged house except on one of the grounds mentioned in sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act. This objection was overruled by both the courts below. The judgment-debtor has filed the present execution second appeal against the order of the appellate court.

3. A preliminary objection was taken on behalf of the decree-holders-auction purchasers that no appeal lay against the order of the executing court directing delivery of possession under O.21, r. 95 C.P.C. as that was not a matter relating to the execution, discharge or satisfaction of the decree. There is a conflict of judicial opinion on the point. The High Courts of Madras (1), Calcutta (2), Kerala (3), Madhya Pradesh (4) and Nagpur (5) have taken one view. The High Courts of Allahabad (6), Bombay (7), Patna (8), Lahore (9) and Rangoon (10) have taken a contrary view.

4. I have been taken through these decisions by the learned counsel for the parties. The decision by a Full Bench of the Calcutta High Court in Kailash Vs. Gopal(2) may be considered as representative of one view and that taken by a Full Bench of the Lahore High Court in Ram Singh Vs. Abdullah Habib Ullah(9) gives reasons for taking the other view. I am respectfully of the opinion that the view taken by the learned Judges of the Lahore High Court is preferable.

5. The decree-holder-auction-purchaser is no doubt a party to the suit within the meaning of sec. 47 C.P.C. But an application under O. 21, r. 95 does not involve a matter relating to the execution, discharge or satisfaction of the decree. For the decree is satisfied as soon as the sale is confirmed and a sale certificate has been issued. In Mahabir Pershad Singh Vs. Macnaghten (11) their Lordships of the Privy Council observed as follows:—

"The decree is only a step towards realisation and the date of the decree is therefore plainly not the date of realisation. Nor on the date of the sale does the purchaser obtain an indefeasible right, for under O. 21, RR. 89, 90 and 91,the sale maybe set aside on various grounds. It is only where no application is made under these rules or where such application is made and disallowed that the Court under O.21, R. 92 makes an order confirming the sale, where upon the sale shall become absolute. It is then that the process of realisation is completed and any profit or income is realised by the decree holder. This is so whether the property is purchased by the decree-holder himself or by a third party."

6. The above decision has the effect of overruling the view taken by Stanely C. J. in his dissenting judgment in Bhagwati Vs. Banwari Lal (12) to the effect that:—

"The execution of a decree-holders decree cannot be said to be satisfied until in the one case he has received the purchase money paid into Court, and in the other case until he be put into possession of the property of his judgment debtor which he has purchased and which represents money."

7. The above view of Stanly C.J. was followed by the Calcutta High Court in the Full Bench case of Kailash Vs. Gopal (2).

8. The result is that an application under O. 21, r. 95 made

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