Authored By : Henry Reynell Holled Coxe, Ray

Henry Reynell Holled Coxe, J.

1. This Appeal is against an order of the Subordinate Judgeat Dacca refusing an application by the Appellant who is a judgment-debtorunder a mortgage decree. The decree-holder had sold the mortgaged property andhad applied for delivery of possession. The judgment-debtor objected on theground that it had been agreed between the parties that possession should notbe taken and asked that that agreement might be recorded. The learnedSubordinate Judge refused the application on the ground that the allegedarrangement did not come within the scope of Or. 21, r. 2.

2. No enquiry was made into the merits and we must assumefor the purposes of this appeal that the assertions in the petition are true infact. They are to the effect that after the sale and before the confirmationthe judgment-debtor applied to have the sale set aside on the usual grounds.That proceeding was compromised by an agreement between the decree-holder andhimself to the following effect.

It was settled between the decree-holders and thejudgment-debtor that the judgment-debtor should get the sale confirmed insteadof carrying on the suit but that the decree-holders should not take possessionof the auction purchased property within 2 years and that on thejudgment-debtor paying to the decree-holders the sum of Rs. 9,100 and a moietyshare of the income of the property accruing from the date of confirmation ofthe sale to that of the realisation of the said money, the decree-holdersshould give up these properties by executing a kobala in favour of thejudgment-debtor.

3. A preliminary objection is taken that no appeal lies.This turns on the question whether proceedings under Or. 21, r. 95, do or donot come within the scope of sec. 47, C.P.C. This is a question on which thereis the greatest diversity of judicial opinion which will be found reflected andsummarised in the case of Bhagwati v. Banwari Lal I. L. R. 31 All. 82 (1908).The case which for the most closely resembles the present case is that ofMuttia v. Appasami I. L. R. 13 Mad. 504 (1890). In that case an assignee of thedecree bought the property in execution and asked to be put in possession. Thejudgment-debtor pleaded an agreement subsequent to the sale. It was held thatthe matter came within the scope of sec. 244, C.P.C., and that an appeal lay.This decision has not commended unreserved assent in the Court of Madras but ina comparatively late case [Sultan Sahib Marakayar v. Chidambaram Chettiar I. L.R. 32 Mad. 136 (1908)], the learned Judges held that though an application fordelivery of possession was not an application for execution, they were bound bya number of decisions to hold that it raised a question relating to execution.

4. In this Court it was held in 1897 in the case of BhimalDas v. Ganesha Kuer 1 C. W. N. 658 (1897), that an application by a decree-holderauction-purchaser to be put in possession was not a matter relating to theexecution, discharge, or satisfaction of the decree and that consequently noappeal lay. With regard to the case of Muttia v. Appasami I. L. R. 13 Mad. 504(1890) cited above, the learned Judges observed that if it affected thequestion they were unable to agree with it but added--"In that case thejudgment-debtor set up an agreement between him and the applicant in bar of theapplication. It does not appear from the report what that agreement was. It maywell be that it was one which operated to affect the execution of thedecree."

5. On the other hand it was held in 1899, in the case ofMadhusudan Das v. Gobinda Pria Chowdhurani I. L. R. 27 Cal. 34 (1899), thatproceedings for the delivery of possession to a decree-holder who purchases atan execution sale are proceedings in the execution of the decree, and inSariatoola Molla v. Raj Kumar Roy I. L. R. 27 Cal. 709 (1900) it was held thatsuch an application is an application to the Court to take a step in aid ofexecution.

6. The next case to which I may refer is that of Ram NarainSahoo v. Bandi Pershad I. L. R. 31 Cal. 737 (1904) decided in April 1904. Inthat case a Defendant in possession being ousted by a decree-holderauction-purchaser applied to be restored to possession. The learned Judgesfollowed Madhusudan Das v. Gobinda Pria Chowdhurani I. L. R. 27 Cal. 34 (1899)and held that sec. 244 authorised an enquiry into the question of possessionwhen it arose between the parties to a suit and their representatives, and thatproceedings for the delivery of possession to an auction-purchaser, who ishimself the decree-holder, are proceedings in the execution of the decree.

7. However in August of the same year the opposite view wastaken in Mahomed Masraf v. Habil Mia 6 C. L. J. 749 (1904), and it illustratesin what uncertainty the matter is involved, that one of the learned Judges wasalso a party to the decision of the preceding April. In the later case theassignee of a decree-holder auction-purchaser applied for possession and theapplication was opposed by the judgment-debtor. It was held, following BhimalDas v. Ganesha Kuer 1 C. W. N. 658(1897) cited above, that the matter did notrelate to the execution, discharge, or satisfaction of the decree and that noappeal lay. It was held that Madhusudan Das v. Gobind Pria Chowdhurani I. L. R.27 Cal. 34 (1899) cited above had no application but no reasons are given forthis view and I do not myself perceive why it was less applicable than the caseof Bhimal Das v. Ganesha Kuer 1 C. W. N. 658 (1897).

8. It seems to me that the balance of authority is in favourof the view that the decision of an objection such as that now under reviewcomes within sec. 47 of the Code and is appealable. Muttia v. Appasami I. L. R.13 Mad. 504 (1890) is directly in point and supports that view. The cases ofMadhusudan Das v. Gobinda Pria Chowdhurani I. L. R. 27 Cal. 34 (1899),Sariatoola Molla v. Raj Kumar Roy I. L. R. 27 Cal. 709 (1900) and Ram NarainSahoo v. Bandi Pershad I. L. R. 31 Cal. 737 (1904) also support it. On theother hand, in Bhimal Das v. Ganesha Kuer 1 C. W. N. 658 (1897), the learnedJudges thought it possible that an objection pleading an agreement in bar of anapplication for possession might possibly operate to affect the execution ofthe decree. And in Mahomed Masraf v. Habil Mia 6 C. L. J. 749 (1904), one ofthe parties to the dispute was a person who had purchased the property from thedecree-holder after the sale. A purchaser of the decree must be regarded as aparty to the suit but a purchaser of the property sold in an execution salefrom the auction-purchaser might possibly not be so regarded. I think thereforethat the balance of authority is in favour of the view that this question comeswithin the scope of sec. 47 of the Code, and on the question of principle, Iagree with the reasoning of Stanley, C.J., in the case of Bhagwati v. BanwariLal I. L. R. 31 All. 82 (1908) cited above. I hold therefore that an appeal lies.

9. On the question whether the agreement alleged in thiscase was an adjustment or not within the meaning of Or. 21, r. 2, I find itvery difficult to come to a conclusion, because the term "adjustment"is itself so indefinite I am inclined to think however that it was not. Thedecree was to remain unaltered and the sale under it, and all that wasstipulated was that possession should be delayed and that under certaincircumstances there should be a reconveyance. There was apparently no provisionfor a default. But it appears to me that it is of little importance whetherthis was an adjustment under O. 21, r. 2, or not. If it was, thejudgment-debtors objection contained a prayer that it should be certified andthat prayer was in time. If it was not, it did not require certification andthe objection to the delivery of possession can be dealt with under sec. 47. Icertainly see no reason why this controversy should be relegated to anothersuit. We are bound as I have said for the present to accept the statements inthe petition as true. They are to the effect that the application to set asidethe sale should be dropped and the sale confirmed but that the delivery ofpossession should be delayed to give the judgment-debtor time to pay off thedebt. I certainly can see no reason whatever why the parties should not makearrangements of this kind, if they desire to do so, and if they do make them itseems to me unnecessarily technical to insist that the proof of sucharrangements should be left to a subsequent suit. Indeed I think it isextremely probable that such a suit would be met with the plea that it wasbarred by sec. 47 of the Code. If this agreement is true then thejudgment-debtor is entitled to a decision upon it. He has raised it in time,supposing that it comes within Or. 31, r. 2, so that it is not excluded fromrecognition by the 3rd clause of that rule. In these circumstances it seems tome the interest no less of the decree holder than of the judgment-debtor thatthe matter should be disposed of without further delay and in the currentproceedings. I would accordingly allow the Appeal and send back the case to theSubordinate Judge for decision on the merits. Costs will abide the result.

Ray, J.

I agree. In the present case the decree-holder was himselfthe purchaser. His prayer for possession has been opposed by thejudgment-debtor. It appears to me that this is a question falling within thescope of sec. 47 of the Code. The arrangement pleaded appears to me to be acontract relating to the execution of the decree and as such the matter shouldbe determined under that section. The case is to be sent back for decision onthe me its.

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