A stranger auction-purchaser is a representative of the decree-holder in a contest with the judgment-debtor over delivery of possession, and thus a dispute between them regarding delivery of possession falls under Section 47 of the Code of Civil Procedure.

1. This is a revision application by tile judgment-debtor directed against the order, dated 8-3-1952, passed by the Additional District Judge, Rajnandgaon, dismissing the appeal filed by the applicant.

2. The facts relevant for purposes of this application are as under. The non-applicant Mst. Jagrani had obtained a decree in Civil Suit No. 182 of 1929 against one Banshiprasad on 3-1-1930, and in execution of the decree put his house to sale. It was purchased by one Ramanand Ramdayal in a Court sale, and the sale was confirmed on 23-7-1932.

The decree-holder Mst. Jagrani (non-applicant in this revision) then purchased it from the auction-purchaser on 24-9-1932, and on 2-2-1933 applied to the Court for delivery of possession. The judgment-debtor raised an objection to the delivery of possession, and during the pendency of the objection, the proceedings were stayed. The objection was dismissed and the Court passed an order that the house be placed in possession of the decree-holder.

At about that time, Banshiprasad's brother Ramadhin filed a declaratory suit and got the proceedings for delivery of possession stayed pending disposal of his suit. This suit also was dismissed. Thereafter, Banshiprasad died and the applicant Ramautar was brought on record as his legal representative on 13-3-1943.

On 6-6-1943 the decree-holder got possession of a portion of the house through Court. In the meantime, Ramautar filed an objection to the delivery of possession on 26-6-1943, and the proceedings were again stayed pending disposal of the objection. The objection was dismissed on 24-7- 1944.

Ramautar went up in appeal against that order and again got the proceedings stayed until the disposal of the appeal. The appeal was dismissed on 29-10-1945, and the second appeal filed, by Ramautar was also dismissed on 30-10-1946. He then filed a civil suit for a declaration and got the proceedings for delivery of possession stayed. This suit was dismissed, so also the appeal on 14-8-1950.

3. Mst. Jagrani then on 27-9-1950 again applied for being put in possession of the property. Ramautar in reply to this application raised objections that the application was barred by time and that delivery of possession could be claimed only by a separate suit and not in execution. The trial Court held that possession could be delivered in execution proceedings and that the application for delivery of possession filed on 27-9- 1950 was nothing but a continuation of the original application dated 2-2-1933 and was in time.

On these findings the Court ordered that possession of the house be delivered to Mst. Jagrani Ramautar went up in appeal against that order to the Additional District Judge, Rajnandgaon, who dismissed it on a preliminary ground that the proceedings for delivery of possession were not proceedings under Section 47, Code of Civil Procedure, and, therefore, the appeal was incompetent. This revision application is directed against that order.

4. This application first came up for hearing before the Honourable the Chief Justice, who referred it to a Division Bench.

5. Mst. Jagrani has filed an application on 9-10-1953, to the effect that as a result of the decision in Second Appeal No. 704 of 1950, decided on 17-7-1953, this revision application has become in, fructuous. It is not possible for us to agree with this contention of the non-applicant. The subject-matter of the second appeal and that of the present proceedings are quite different.

The subject-matter of the second appeal was a claim put forward by Ramautar that the house in question was his exclusive property, and that of the present proceedings to whether Mst. Jagranibai who is a purchaser from the auction- purchaser can obtain possession in execution proceedings and whether the proceedings are within time.

Thus, the subject-matter of the second appeal being quite distinct from the contest involved in the present proceedings, the decision of the second appeal cannot operate as 'res judicata' in the