Sir Edward Maynerd Des Champs Chamier, Kt., C.J.

1. Madhab Prasad father of the respondents obtained a decree for money against the appellant, in execution of which he caused certain property of the appellant to be sold. By leave of the Court he purchased it himself. He succeeded in obtaining possession of part of the property, but in respect of the remainder he was obstructed by the appellant who contended that it was not part of the property sold. Madhab Prasad died soon afterwards and his sons, the present respondents, applied to the Court under Order XXI, rule 95, to place them in possession of the disputed property. The Court allowed the application. Hence this appeal. The respondents contend that no appeal lies.

2. The question thus raised is one on which there has been much conflict of judicial opinion during the last 30 years or more.

3. Some Judges have taken the view that an order under section 318 of the Code of Civil Procedure, 1882, or Order XXI, rule 95, of the present Code disposes of a question relating to the execution, discharge or satisfaction of the decree" within the meaning of section 244 of the Code of 1882, or section 47 of the present Code, and that where the question arises between the judgment-debtor and an auction-purchaser, who was originally plaintiff in the suit, it is a question "arising between the parties to the suit" within the meaning of section 244 of the Code of 1882, or section 47 of the present Code, and the decision is consequently a decree within the meaning of section 2 of either Code and is appealable as such.

4. Other Judges have held that an appeal does not lie, either because the question is not one relating to the execution, discharge or satisfaction of the decree" or because the question does not arise between the judgment-debtor and the decree-holder as such but between the judgment-debtor and the auction-purchaser as such.

5. In the Allahabad High Court after many conflicting decisions the question was referred to a Full Bench of five Judges with the result that three Judges held that an appeal did not lie, and the Chief Justice and Knox, J., held that an appeal did lie, Musammat Bhagwati v. Banwari Lal 1 Ind. Cas. 416 : 31 A. 82 : 6 A.L.J. 71 : 5 M.L.T. 185.

6. In the Bombay High Court it has been held that an appeal does lie, Sadashiv Mahadu Dhole v. Narayan Vithal Mawal 11 Ind. Cas. 987 : 35 B. 452 : 13 Bom. L.R. 661.

7. In the Madras High Court it is now settled by a long course of decisions that an appeal does lie in such a case, but in two cases the Judges have expressed great doubt as to the correctness of those decisions [see Kattayat Pathumayi v. Raman Menon 26 M. 740 : 13 M.L.J. 237 and Sandhu Taraganar v. Hussain Sahib 28 M. 87 : 14 M.L.J. 474].

8. In the Calcutta High Court it has been held in three cases that an appeal does lie in such a case [see Madhusudan Das v. Gobinda Pria Chowdhurani 27 C. 34 : 4 C.W.N. 417 decided without reference to the reported cases on the subject, Ram Narian Sahoo v. Bandi Pershad 31 C. 737 and Hari Charan Dutt v. Mon Mohan Nandy 20 Ind. Cas. 874 : 18 C.W.N. 27]. The case of Sariatoolla Molla v. Raj Kumar Roy 27 C. 709 : 4 C.W.N. 681, which was referred to, deals with a different question but language was used in the judgment which supports the view that an appeal does lie in such a case.

9. In the same Court it has been held in seven cases, either expressly or impliedly, that an appeal does not lie [see Seru Mohun Bania v. Bhagoban Din Pandey 9 C. 602 : Iswar Pershad Gurgo v. Jai Narain Giri : 12 C. 169 : Appeal No. 207 of 1884 decided on July 20th 1885, unreported; Kishori Mohun Roy Chowdhry v. Chunder Nath Pal 14 C. 644; Bhimal Das v. Musammat Ganesha Koer 1 C.W.N. 658; Mahomed Mosraf v. Habil Mia 6 C.L.J. 749 and Sasibhusan Mookerjee v. Radhanath Bote 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433, where all the authorities are reviewed, and the decision in Bhimal Das v. Musammat Ganesha Koer 1 C.W.N. 658 has been expressly approved in Bujha Roy v. Ram Kumar Pershad 26 C. 529 : 3 C.W.N. 374 and Jagarnath Marwari v. Kartick Nath Pandey 7 C.L.J. 436].

10. Much stress was laid upon the decision of their Lordships of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C. 683 (P.C.) 19 I.A. 166 : 6 Sar. P.C. 209, but that case in no way affects the question which we have to decide and an order of the kind there in question is under the present Code of Civil Procedure appealable as an order and not as a decree [see Order XXI, rule 90 and Order XLIII, rule 1(j)].

11. Nor does the decision in Manickka Odayan v. Raja Gopala Pillai 30 M. 507 : 2 M.L.T. 347 : 17 M.L.J. 29(sic), which has been cited, affect the present question, for that was a case under section 310A of the Code of 1882. The question whether an appeal lies against an order under that section or Order XXI, rule 89, of the present Code depends upon other considerations [see Mahomed Akbar Zaman Khan v. Sakhdeo Pande 10 Ind. Cas. 51 : 13 C.L.J. 467.]

12. I am strongly of opinion that this Court should not without very good reason depart from a long course of decisions in the Calcutta High Court. I consider that the cases which I have referred to show that the balance of opinion in the Calcutta Court has been since 1883 so strongly in favour of the view that an appeal does not lie in such a case, that we ought to follow it as if it were a settled cursus curiae. To do otherwise would cause great and unnecessary confusion. I would accordingly dismiss this appeal but under the circumstances make no order as to costs.

Saiyid Sharfuddin, J.

13. I agree.

Atkinson, J.

14. I agree.

15. By the Court.--The order of the Court is that the appeal is dismissed, There will be no order as to costs.