Ramendra Mohan Datta, J.

1. This is an application under Order 21, Rule 95 of the Code of Civil Procedure. The Defendant Kartick Kumar Dhur is the judgment-debtor in a mortgage decree in respect of the undivided half share in the premises No. 32B, Brindaban Bysack Street, Calcutta. The final decree was passed on August 17, 1960. The sale order was made. The Petitioner Ginia Debi was declared the highest bidder at a price of Rs. 24,000. The Petitioner paid the entire purchase money. On September 28, 1965, the sale was confirmed. The sale certificate had been duly granted in favour of the Petitioner.

2. The property was sold, inter alia, on the following conditions of sale:

Upon payment of the purchase money in manner aforesaid, the purchaser shall be entitled to possession of such parts of the property as are in hand, and to the rents and profits of such parts as are let as from the day of such payment, and shall be entitled to a proper conveyance, wherein all proper parties shall join as the Registrar shall direct.

3. The other undivided half share of the property had also been purchased by the Petitioner on October 9, 1964, from the United Bank of India Ltd. which was the mortgagee-purchaser of the share of Karticks brother Aukhoy under the mortgage-decree passed in a different suit.

4. The Petitioner is now claiming for an order that she be put into possession of such parts of the said premises which are in the occupation of the judgment-debtor and his men. The judgment-debtor is occupying one room on the roof on the second floor of that premises. The other portion of the said premises is let out to different tenants.

5. The judgment-debtor is contesting the application on various grounds. According to him one Probodh Chandra Das made an application for setting aside the said sale. The same was dismissed by Ray, J. An appeal had been preferred which is still pending.

6. It is true that the said Probodh Chandra Das obtained an order from the Appeal Court staying the operation of the order of dismissal made by Ray, J., but it also appears that the said order of the Appeal Court does not in any way affect the Petitioners right to obtain possession of the said premises. In any event, the said order for issue of sale certificate in favour of the Petitioner was passed subsequent to the said stay order made by the Appeal Court. After the said issue of sale certificate Probodh Chandra Das made yet another attempt by making an application for an order for injunction restraining the Petitioner from taking possession. An interim order was obtained, but ultimately on June 6, 1966, the said interim order was vacated and the application was dismissed.

7. Thereafter on August 17, 1966, the present application was made.

8. In my opinion, these are points which could be agitated, if at all, by Probodh Chandra Das but the judgment-debtor cannot be heard to urge such points at this stage and I overrule the above objections taken on his behalf.

9. In my opinion, the proceedings have now reached a stage when the judgment-debtor has to comply with the above conditions of sale. Otherwise he is bound to suffer an order for delivery of possession under the provisions of Order 21, Rule 95 of the Code, if it applies to the facts and circumstances of this case.

10. The judgment-debtor has also taken up a point that even in respect of the said one room which he is occupying in the said premises, he is a sub-tenant under one Netai Charan Manna and, as such, he cannot be evicted under Order 21, Rule 95 of the Code. It is not necessary for me to decide this question because of my finding on the next point.

11. A very substantial point has been urged on behalf of the judgment-debtor. It is urged that in the facts and circumstances of this case the provision of Order 21, Rule 95 is not applicable. The subject-matter of this application is the undivided half share of the premises. Until that half share is demarcated by partition by metes and bounds, it cannot be said that the judgment-debtor is in occupation of any particular portion of that undivided half share which is the subject-matter of this application.

12. It is urged that as regards the undivided half portion of the property which has been purchased from the United Bank of India the purchaser can obtain possession thereof only by a regular suit. Such a suit has been filed by Ginia Debi claiming possession of that undivided half share. As such the said portion comprising the said undivided half share cannot be made the subject-matter of this application. The fact remains that the said suit for possession is still now pending. The Official Receiver who was appointed a Receiver is still in possession of the said undivided half share covered by the said decree.

13. In order to appreciate this point it is necessary to examine the provisions of Order 21, Rule 95 of the Code of Civil Procedure, which runs as follows:

Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

The principle involved in the above provision, in my opinion, is that the purchaser at a court sale might not be faced with any difficulty from the judgment-debtor at least in the matter of obtaining delivery of possession of the property purchased by him which property might be in the occupation of the judgment-debtor or somebody on his behalf. If the judgment-debtor is in possession he must vacate; if it is in the occupation of his tenants then by letters of attornment the purchaser must be put into symbolical possession. The Court exercises its power even to remove the judgment-debtor or anybody who might be inducted in the property by the judgment-debtor after certificate had been granted by the Court.

14. Mr. P.K. Das appearing on behalf of the judgment debtor in support of his contention relied on the case of Yelumalai Chetti v. Srinivasa Chetti (1906) I.L.R. 29 Mad. 294 for the proposition that the purchaser at a court sale of an undivided share belonging to a member of a joint Hindu family acquired only a right to sue for partition and for delivery of what might be allotted as the share of such member. In that case the Court held that the only right acquired by the court sale against the second Defendant in the said suit was a right to effectuate the sale by a suit for partition of the joint property of the coparcener and the delivery to the Plaintiff of what might be allotted to the share of the second Defendant at the partition.

15. In another case of Mathuri Suryanjaneyalu v. Thummalasetto Venkateswarlu : A.I.R. 1955 A.P. 203 it was held that the judgment-debtor being co-owner with others, Order 21, Rule 95 of the Code of Civil Procedure would not apply as actual delivery could not be effected and the auction-purchaser could not be put into actual possession along with the other co-owners. In that case a suit was filed for partition and for recovery of possession of the two third share of the land which was purchased by the purchaser. In that case it was argued that the decree-holder auction-purchaser ought to have applied for possession under Order 21, Rule 95 or under Rule 96 of the Code of Civil Procedure and he having not proceeded under those provisions his suit for partition was not maintainable. The above case Supra was considered by the said judgment. By following that case and some others, the said Andhra Court held that the suit for partition was maintainable in the facts and circumstances of that case.

16. Mr. Das then relied on the case of V.C. Thani Chettiar v. Dakshinamurthy Mudaliar : A.I.R. 1955 Mad. 288 [LQ/MadHC/1954/301] . That case also was in respect of the purchase of an undivided share of a coparcener of a joint Hindu family and the Division Bench of the Madras High Court followed Yelumalai Chettis case Supra.

17. It was held in that case that there could be no delivery, either symbolical or actual, in pursuance of the sale of an undivided interest in joint family property.

18. In the case of Balaji Anant v. Ganesh Janardan (1881) I.L.R. 5 Bom. 499 it was held that the purchasers or his assignees proper remedy in such a case was by a suit for partition and that such a person could not claim to be put into joint possession, with the judgment-debtor and the other members of the undivided Hindu family, of the family property.

19. It is true that the other undivided half share of that premises has also been purchased by the applicant Ginia Debi, but even then, in my opinion, the position remains unaltered. The point still remains as to whether the judgment-debtor can be said to be occupying any portion of the undivided half share which the judgment-debtor had in that property. Until partition is effected, the entire property has to be looked into as one unit and in that context it is not possible to describe or demarcate any portion as forming part of the particular undivided half share of the said property. It is not possible for me, at this stage, to determine whether the room occupied by the judgment-debtor falls within his own undivided half share or in the undivided half share of his brother Aukhoy which was purchased by the United Bank of India and thereafter by the applicant Ginia Debi. The right to recover possession by this application under the summary procedure provided by the Code is available to the Petitioner only in respect of the portion which forms the undivided half share in Karticks share and that right cannot attach to the undivided half share of Aukhoy in respect whereof also the Petitioner is the purchaser. The right acquired by the Petitioner in respect of the undivided half share of Aukhoy is a different right altogether for which the purchaser has no right to proceed under this application. It is admitted by both the parties that the applicant, as the owner of the undivided other half share of the said property after purchasing the same from the United Bank of India, cannot ask for possession of that other half portion or any part thereof by applying under the provisions of Order 21, Rule 95 of the Code of Civil Procedure. In respect of that undivided half portion the purchaser Ginia Debi has to take appropriate steps for demarcating the half share and for separate possession thereof. In my opinion it is only then that the applicant can seek her remedy as prayed herein under the provision of Order 21, Rule 95 of the Code.

20. On behalf of the Petitioner reliance was placed on the case of Kishori Mohun Roy Chowdhury v. Chunder Nath Pal (1887) I.L.R. 14 Cal. 644, wherein it was held that the purchaser in a court sale might proceed either under Section 318 of the Code of 1882 which was the corresponding provision for Order 21, Rule 95 of the Code of 1908 or he might proceed by way of regular suit. The two remedies were held to be concurrent. In that case it was argued that until the auction-purchaser in a court sale had exhausted his remedies as provided under the summary provision of the Code he could not avail of the ordinary remedies to proceed by a regular suit which was provided by law. It was held that the suit was maintainable even in such circumstances and the Court accordingly decreed the said suit. This case, in my opinion, does not help the applicant in any manner.

21. The next case on which reliance had been placed is a case of Harakh Sonar v. Gopi Kishun : A.I.R. 1926 All. 120. In this case also the similar principle as enunciated in Kishori Mohun Roy Chowdhurys case (1887) I.L.R. 14 Cal. 644 was followed. In this case also the Plaintiff filed a suit for recovery of possession instead of applying under Order 21, Rule 95.

22. Mr. Ghose then relied on the case of Sm. Poodipeddi Laxminarasamma v. Gada Ranganayahamma : A.I.R. 1964 Ori 43, [LQ/OriHC/1963/137] wherein it was held that under the Madras School of Hindu Law the purchaser of a coparcenery interest of a Hindu joint family, whether in a private or a court sale, did not stand in the same position as a coparcener himself and he was not entitled to joint possession with other co-sharers. Such a purchaser would merely acquire a right to compel the partition which the coparcener whose right he purchased, had. By merely obtaining a symbolical delivery of possession the decree-holder auction-purchaser of such interest did not become entitled to joint possession with the other coparceners in respect of the purchased property. Such a symbolical delivery could not have any effect in view of the substantive position of Hindu Law that such a sale would not create any right in favour of the purchaser to entitle him even to joint possession along with the coparceners.

23. It should be noted that the said Orissa case was decided by relying on the Supreme Court case of Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh : A.I.R. 1953 S.C. 487, where their Lordships of the Supreme Court were of the view that the purchaser of an undivided interest of a coparcener did not acquire title to any definite share and was not entitled to joint possession from the date of his purchase. Their Lordships of the Supreme Court further held that such a purchaser would only work out his rights by a suit for partition.

24. According to Mr. Ghose all these above cases dealt with Mitakshara joint family and the rights of coparceners which were involved therein. His contention was that it was not possible for anybody to guess what would be the share of a coparcener in a joint family until the partition was actually effected and that was the reason why in those cases it was held that a purchaser of such interest in the property in a court sale had to seek his remedy by way of a regular suit and could not proceed under Order 21, Rule 95 of the Code. According to him, when considering the case under the Dayabhaga school of Hindu Law, as was the case here, the position would be different because the shares in the Dayabhaga school of Hindu Law were well defined. I cannot accept the argument of Mr. Ghose. In my opinion, the position would be the same for the purpose of determining the right of an auction-purchaser of an undivided share whether the coparcenery right under the Mitakshra law is involved or whether the judgment-debtor be governed by the Dayabhaga school of Hindu Law. In both the cases if the auction-purchaser is to be put into possession then he has to face the same consequences.

25. Mr. Ghose then argued that in the present case there were no materials on record to show that it was a joint family property or a coparcenery property or that it was a joint family dwelling house. Under the circumstances his client was entitled to joint possession along with the other co-sharers, if any, as provided by Section 44 of the Transfer of Property Act. Section 44 of the Transfer of Property Act provides as follows:

Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

26. Mr. Das, in my opinion, rightly pointed out that this section was not applicable in view of the fact that the transfer herein had been effected by operation of law and such a transfer was not contemplated by Section 44 of the Transfer of Property Act. In support of his argument he relied on Section 2(d) of the Transfer of Property Act which provides as follows:

But nothing herein contained shall be deemed to affect--

* * * *

(d) Save as provided by Section 57 and chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction.

Mr. Das further argued that, in any event, in para. 3 of the petition itself the Petitioner had described this premises as a dwelling house and under the circumstances by virtue of the second paragraph of Section 44 of the Transfer of Property Act, the said section could not apply and the Petitioner being a stranger purchaser could not be entitled to joint possession or other common or part enjoyment of the premises in suit. I uphold both the above contentions of Mr. Das.

27. Mr. Ghose lastly argued that the judgment-debtor could not be heard to complain as to how the other co-sharers rights might be affected. The judgment-debtor was liable to vacate the portion occupied by him, viz., one room on the roof on the second floor because, according to him, the judgment-debtor could not be heard to say that his portion had not been demarcated yet. Mr. Ghose relied on the conditions of sale whereby the judgment-debtor was bound to deliver up possession at this stage. Further, according to him, there could be no disputed question of facts in so far as the judgment-debtor was concerned. In my opinion, this summary remedy provided by the Code cannot be made applicable to this case. Mr. Ghose has cited the following authorities besides the authorities already referred to by me: Sarvi Begam v. Taj Begam (1914) I.L.R. 36 All. 181, Sudarshan Das v. Biraja Sundari Dasi (1916) 38 I.C. 338 : A.I.R. 1917 Cal. 232, 16 Indian Decisions (O.S.) 1585, Koonwur Bijoy Keshub Roy Bahadoor v. Shama Soonduree Dossee (1865) 2 W.R. (Sutherland) Misc. 30, Eshan Chunder Banerjee v. Nund Coomar Banerjee (1867) 8 W.R. (Sutherland) 239, Pethaperumal Ambalam v. Chaidambaram Chettiar : A.I.R. 1954 Mad. 760 [LQ/MadHC/1953/367] and Rajanikanth Biswas v. Ram Nath Neogy (1883) I.L.R. 10 Cal. 244.

28. I shall deal with specially the last mentioned case of Rajanikanth Biswas v. Ram Nath Neogy (1883) I.L.R. 10 Cal. 244 where the Division Bench of this High Court held that the purchaser was entitled to joint possession of the dwelling house with the other share-holders and also to a right to share in the service rent. In that case the Plaintiff purchased the right, title and interest of two members of Biswas family in certain property.

29. It has to be noted that in the above case cited by Mr. Ghose the right to claim possession was enforced by way of a suit and not by way of summary procedure as provided by the Code. Moreover, in a later case of Girija Kanta Chakrabarty v. Mohim Chandra Acharjya (1915) 20 C.W.N. 675 the Division Bench of this Court presided over by Sir Ashutosh Mookherjee followed the above Bombay case Supra and held that the Plaintiff purchaser should not be placed in actual joint possession of the premises in suit but should be left to his remedy by a suit for partition. In that case, the case of Rajanikanth Biswas v. Ram Nath Neogy Supra was also referred to. This case of Girija Kanta Chakravarty (1915) 20 C.W.N. 675 is binding on me and with respect I follow the same.

30. After considering all these judgments and the points argued before me on behalf of the auction-purchaser as also on behalf of the judgment-debtor, I am of the opinion that the Petitioner-purchaser cannot be put into possession by an order in this application.

31. Under the circumstances the application fails and I make no order on this application, but in the facts and circumstances of this case, I direct that the costs of this application should be borne by the judgment-debtor and I assess the same at seven gold mohurs. Certified for counsel. The Plaintiff assignee decree-holders costs would be added to her claim.