Citation Codes

Equivalent Citations

citation codes

Case Number

Ex. F.A No. 331 of 1945

Attorney(S)

Sripati Sahai Srivastava
Harnandan Prasad

Judges

V. Bhargava
Mukerji
M.L Chaturvedi, JJ.

Acts

Article 182 of the Limitation Act
Order 21, Rule 72 of the Code,
Order 21, Rule 85 of the Code,
Order 21, Rule 95

See more information ...

Smart Summary

Structured Summary of the Opinion (Malik, C.J.)

Factual and Procedural Background

In 1920 Shrimati Gulab Dei (respondent) sued Sadhu Saran for arrears and future maintenance, claiming she was a widow entitled to maintenance from a joint Hindu family of which Sadhu Saran was Karta. By compromise on 13 December 1920 a sum was paid towards arrears and future maintenance was fixed at Rs. 250 per annum, payable in four quarterly instalments. A charge was created on certain properties and a decree was entered in terms of the compromise.

The judgment-debtor did not pay regularly and multiple execution applications ensued. The seventh execution application (filed 3 March 1938) claimed arrears up to 31 December 1937; the charged property was sold on 4 April 1940 and the sale confirmed on 8 June 1940. On 22 February 1943 the decree-holder who had become the auction-purchaser applied for possession; possession was delivered on 30 March 1943.

The eighth execution application was filed on 18 February 1941 claiming arrears for 1938–1940 but was dismissed for want of prosecution on 23 April 1941. The ninth application under consideration was filed on 2 November 1944 claiming amounts from 1 January 1938 to 30 September 1944. The judgment-debtor objected that the ninth application was time-barred; the execution court dismissed the objection. On appeal the appellant (judgment-debtor) confined his objection to the claim for the first three years 1938–1940.

Legal Issues Presented

Was the respondent's application for execution within time in respect of the earlier three years (1938, 1939 and 1940)? (Framed in the opinion as the short point referred to the Full Bench.)
More specifically, whether the application dated 22 February 1943 could be treated as a "step-in-aid" of execution within the meaning of Article 182 of the Limitation Act so as to make the earlier three years' claim within time.

Arguments of the Parties

Appellant's Arguments

The appellant (judgment-debtor) objected that the ninth execution application (filed 2 Nov 1944) was barred by time in respect of arrears for 1938–1940.
Learned counsel for the appellant advanced that the application dated 22 February 1943 (by the decree-holder who was the auction-purchaser seeking possession) was a "step-in-aid" of execution; if so, Article 182's three-year period would run from that date and thus make the subsequent 1944 application timely for the earlier years.
It was also urged on grounds connected to the Code (Order 21 provisions) that delivery of possession after confirmation of sale is connected with execution, discharge or satisfaction of the decree, supporting the contention that actions after sale confirmation constitute steps-in-aid.

Respondent's Arguments

This opinion does not contain a detailed account of the respondent's separate legal arguments beyond the factual record and the execution applications; the court's analysis focuses on the capacity in which the 22 February 1943 application was made and on authorities cited in support or against treating that application as a step-in-aid of execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kedar Nath v. Arun Chandra Sinha, A.I.R. 1937 All. 921	Illustration that possession not having been delivered does not mean the decree remains executable again; used to show that an auction-purchaser's claim to possession is not part of execution by the decree-holder.	The court relied on the Chief Justice's reasoning in Kedar Nath to reject the view that lack of possession meant the decree remained unsatisfied; the case supports treating the auction-purchaser's application for possession as separate from the decree-holder's execution rights.
Hargovind Fulchand v. Bhudar Raoji, I.L.R. 48 Bom. 550 (Full Bench)	Authority cited (in Kedar Nath) as supporting the view that a decree-holder who purchases at auction stands in the same position as other purchasers.	Referred to as one of several supporting precedents underlying the consistent view that decree-holder auction-purchasers are not in a special position vis-à-vis execution.
Tribeni Prasad Singh v. Ramasray Prasad Chaudhuri, I.L.R. 10 Pat. 670 (Full Bench)	Full Bench authority cited in support of the proposition that the auction-purchaser is not a representative of the decree-holder for execution purposes.	Noted by the court as part of the cluster of decisions supporting the proposition adopted in Kedar Nath's case.
Gaya Bakhsh Singh v. Rajendra Bahadur Singh, I.L.R. 3 Luck. 182 (Full Bench)	Full Bench authority cited in Kedar Nath supporting the same general principle.	Referred to as supporting precedent consistent with the court's view that the auction-purchaser's rights arise from purchase, not from the decree.
Punjab National Bank v. Biri Mal, A.I.R. 1930 Lah. 363 (Division Bench)	Division Bench authority cited in Kedar Nath in support of the consistent view.	Included among authorities showing a consistent line of decisions that the auction-purchaser is equivalent to any purchaser at an execution sale.
J.A. Martin v. S.M. Hashim, I.L.R. 8 Ran. 162 (Division Bench)	Another Division Bench decision cited in Kedar Nath in support of the principle on auction-purchasers.	Referred to as part of supportive authority for the proposition adopted by the court.
Kailash Chandra Tarapdar v. Gopal Chandra Poddar, I.L.R. 53 Cal. 781 (Full Bench)	Full Bench authority representing a contrary view (i.e., that the auction-purchaser's possession/delivery questions relate to execution of the decree).	Cited by the court as an example of a contrary view discussed in Kedar Nath; not followed by the court here.
Veyindramuthu Pillai v. Maya Nadan, I.L.R. 43 Mad. 107 (Full Bench)	Full Bench authority taking a contrary view to the cluster of decisions cited in support of Kedar Nath.	Noted by the court as a contrary authority discussed in Kedar Nath; the court did not adopt the contrary view.
Bhagwati v. Banwari Lal, I.L.R. 31 All. 82	Judgment (Banerji, J.) discussed in Kedar Nath and relied on in the line of authority treating auction-purchasers as equivalent to other purchasers.	Referred to as part of the well-considered judgments supporting the consistent view of this Court.
Moti Lal v. Makund Singh, I.L.R. 19 All. 477 (Division Bench)	Division Bench decision bearing on the question; noted in the opinion for its historical position.	The court recorded that Moti Lal was decided before the Full Bench and after the Full Bench decision it "is no longer good law."
Babu Ram v. Piari Lal, I.L.R. 41 All. 479 (Division Bench)	Division Bench decision cited in the record and considered by the court.	The court expressly overruled Babu Ram on the ground that it does not lay down correct law.

Court's Reasoning and Analysis

The court framed the decisive inquiry: whether the application dated 22 February 1943 was a "step-in-aid" of execution under Article 182 of the Limitation Act. Article 182 provides a three-year period for execution running from (a) the date of the decree or order, or (b) where an application for execution has been made previously, from the date of the final order, or (c) where some step-in-aid in execution of the decree or order had been taken, from that date.

The court reasoned that the answer depends on two linked questions: whether the 22 February 1943 application was made by Shrimati Gulab Dei in her capacity as decree-holder, and whether it related to execution, satisfaction or discharge of the decree.

The court observed that the decree itself conferred no right on the decree-holder to claim possession of the property or to claim that the property be sold to her. The decree-holder's right was to put the decree into execution in the manner provided by the Code (i.e., to have the judgment-debtor's property sold so the decree might be satisfied). The court explained the statutory and procedural position under the Code:

Order 21, Rule 72 (as it formerly stood) prevented a decree-holder from bidding at auction except with court permission; the rule was since amended so that the decree-holder now stands in the same position as any other bidder and may bid.
If the decree-holder (or any bidder) becomes the highest bidder and the sale is confirmed in his favour, he becomes entitled to the sale certificate and then may apply (under Order 21, Rule 95) for delivery of possession; the court can effect possession, and a person dispossessed may sue for possession within one year under Article 11A of the Limitation Act.
The court emphasized that the right to have the property sold and to secure possession after sale flows from being the highest bidder (i.e., from the purchase), not from the decree itself.

From these premises the court concluded that an auction-purchaser who happens to be the decree-holder does not act as a decree-holder when applying for delivery of possession after purchase; rather, the application is made in the character of an auction-purchaser. Therefore such an application cannot be treated as a step-in-aid of execution of the decree.

The court addressed two specific contentions advanced in support of treating the 22 February 1943 application as a step-in-aid:

That any application by a decree-holder should be deemed to be an application by a decree-holder against his judgment-debtor and therefore fall under Section 47 of the Code. The court rejected this: the application for delivery of possession could not be made by the decree-holder "as such" because the decree gave no right to possession; the application was by the auction-purchaser in his capacity as purchaser.
That, because Order 21 contains provisions for delivery of possession after confirmation of sale, the question of delivery of possession must necessarily relate to execution, discharge or satisfaction of the decree. The court rejected this too, relying on the Kedar Nath illustration: the mere fact that the executing court can order delivery of possession after confirming sale does not convert questions of delivery of possession (which depend on the purchaser's rights) into questions of execution of the decree. The money paid by an independent auction-purchaser can be applied to satisfy the decree, and the purchaser's claim to possession is independent of the decree-holder's execution rights.

The court also emphasized that the auction-purchaser is not a representative of the decree-holder but rather of the judgment-debtor; any dispute between auction-purchaser and judgment-debtor is a dispute between the judgment-debtor and his own representative, not an execution dispute under Section 47.

The reasoning relied on authorities collected and discussed in Kedar Nath's case and on a long line of Full Bench and Division Bench decisions that the court treated as representing a consistent view that a decree-holder who becomes an auction-purchaser stands in no different position from any other purchaser at an execution sale.

Finally, the court considered two Division Bench rulings of this Court (Moti Lal v. Makund Singh and Babu Ram v. Piari Lal). It held that Moti Lal was decided before the later Full Bench decision and is no longer good law, and it overruled Babu Ram as incorrectly laying down the law.

Holding and Implications

Holding: The court's answer to the referred question is explicitly stated as in the negative. In other words, the application dated 22 February 1943 was not a "step-in-aid" of execution for the purposes of Article 182 of the Limitation Act.

Direct implications (as set out in the opinion):

The 22 February 1943 application (by the decree-holder as auction-purchaser for delivery of possession) cannot be treated as extending the period of limitation under Article 182 by constituting a step-in-aid of execution.
The court recorded that the Division Bench decision in Moti Lal v. Makund Singh is no longer good law in light of the Full Bench authority, and it expressly overruled Babu Ram v. Piari Lal as laying down incorrect law.
The matter was to be placed before the larger Bench concerned (the case was to be put up before the Bench concerned), indicating further consideration consistent with the Full Bench referral recorded at the start.

The opinion does not elaborate broader policy consequences beyond these direct effects on the parties and the authorities mentioned; it emphasizes that the decree-holder's post-sale rights arise from purchase and not from the decree, and that no new precedent beyond the holdings and overrulings stated was purportedly created by this short opinion.

This summary is strictly based on the information contained in the provided opinion and does not add or infer facts or holdings beyond the text.

Show full summary ...

Mst. Suraj Dei J.D v. Mst. Gulab Dei D.H .

Malik, C.J:— The short point referred to the Full Bench is as follows:—

“Was the respondent's application for execution within time in respect of the earlier three years?”

2. The facts of the case are that Shrimati Gulab Dei, respondent, filed a suit in the year 1920 against Sadhu Saran for arrears of maintenance and for future maintenance. She claimed that she was the widow of a member of the joint Hindu family and after the death of her husband she was liable to be maintained from the funds of that family of which Sadhu Saran was in possession as Karta. On the 13th of December, 1920, there was a compromise and a sum of money was paid towards the arrears and the future maintenance was fixed at Rs. 250 per annum payable in four equal instalments falling due on the 31st of March, 30th of June, 30th of September and 31st of December in each year. A charge was also created on certain properties mentioned in the compromise. A decree was passed by the court in terms of the compromise. The judgment-debtor did not, however, pay the maintenance allowance regularly and a series of applications had to be made for execution of the decree. It is not necessary to deal with the earlier applications. The seventh application was filed on the 3rd of March, 1938, and the arrears claimed were up to 31st December, 1937. It was prayed that certain items of property mentioned in the execution application and over which a charge had been created should be sold by auction. On the 4th of April, 1940, the property was sold. On the 8th of June, 1940, the sale was confirmed. On the 22nd of February, 1943, the decree-holder auction-purchaser applied for possession of the property purchased by her at auction. On the 30th of March, 1943, possession was delivered. That terminated those proceedings.

3. On the 18th of February, 1941, the eighth application for execution was filed in which arrears of maintenance were claimed for the years 1938, 1939 and 1940. This application was dismissed for want of prosecution on the 23rd of April, 1941.

4. The ninth application, with which we are concerned, was filed on the 2nd of November, 1944, and the amount claimed was from the 1st of January, 1938, to the 30th of September, 1944. The judgment-debtor filed an objection that the application was barred by time, but the objection was dismissed by the execution Count. In this appeal by the judgment-debtor the learned counsel for the appellant has confined his objection only to the claim for the first three years, i.e, 1938, 1939 and 1940.

5. An argument was advanced before the Bench hearing the appeal that the application dated 22nd February, 1943, was a step-in-aid of execution. The question that has, therefore, to be decided is whether the application dated 22nd February, 1943, could be considered as a step-in-aid of execution. Article 182 of the Limitation Act provides a period of three years for execution of a decree from the date of the decree or order, or where the application for execution has been made previously, from the date of the final order or where some step-in-aid in execution of the decree or order had been taken, from that date. The answer to the question whether the application dated 22nd February, 1943, was a step-in-aid of execution would depend on whether the application filed by Shrimati Gulab Dei was in her capacity as a decree-holder and whether it was an application that related to execution, satisfaction or discharge of her decree.

6. It cannot be disputed that Shrimati Gulab Dei had no right under the decree either to claim possession of the property or even to claim that the property be sold to her. The only right that the decree conferred on her was to put it into execution in the manner provided in the Code and one of the modes provided in the Code was to have the property of the judgment-debtor put to sale so that from the sale proceeds the decree might be satisfied. Under Order 21, Rule 72 of the Code, before it was amended, a decree-holder did not even have a right to bid at auction and he could only do so with the express permission of the Court. That rule has, however, been amended by this Court and the decree-holder has now been put in exactly the same position is any other person and is entitled to bid at the auction. If his bid happens to be the highest, he can claim that the sale be confirmed in his favour. If the sale is confirmed in his favour then he becomes entitled to get the sale certificate and possession of the property. The auction-purchaser can apply under Order 21, Rule 95 to the Court granting the sale certificate that he be put in possession of the property and the Court can put him in possession, if need be, by removing any person who refuses to vacate the same, and the person made to vacate the property has a right to file a suit in the civil court for possession of the property within a period of one year under Article 11A of the Limitation Act. The right of the decree-holder to have the property sold and possession delivered to him flows from his being the highest bidder and not from the decree. The position, therefore, of a decree-holder is exactly the same as that of any other person who bids at an auction sale and whose bid being the highest is accepted by the Court and the sale is confirmed in his favour.

7. Two points have been raised in support of the contention that the application dated the 22nd February, 1943 was a step-in-aid of execution. It is urged that the decree-holder's position remains still that of a decree-holder and any application that he may file would be deemed to be an application by a decree-holder against his judgment-debtor and it must, therefore, come under Sec. 47 of the Code. From what we have already said it is clear that the application for delivery of possession could not be made by the decree-holder as such, as the decree gave him no such right and it was an application by him as the auction-purchaser of the property. It is also urged that so long as the decree-holder has not got possession of the property it cannot be said that his decree has been satisfied. This latter argument was met in a very apt illustration given by the learned Chief Justice, Sir Shah Mohammad Sulaiman, in Kedar Nath v. Arun Chandra Sinha A.I.R 1937 All. 921.. He pointed out that, if after the sale certificate had been issued but before possession had been delivered the property was destroyed by an earthquake, the decree-holder could not claim that since he had not got possession of the property he could again claim the right to execute his decree.

8. Learned counsel has also urged that, since there is a provision in Order 21 for delivery of possession of the property after confirmation of the sale, it must be deemed that the question of delivery of possession of the property to the auction-purchaser is a question relating to execution, discharge or satisfaction of the decree. As was pointed out by the learned Chief Justice in Kedar Nath's case, the mere fact, that the executing court is authorised after it has confirmed the sale in favour of the auction-purchaser to direct delivery of possession to him, does not necessarily make it a question relating to execution, discharge or satisfaction of the decree. If the auction-purchaser is a third party and he has deposited the money after the purchase, as he has to do within 15 days under Order 21, Rule 85 of the Code, the money can be paid to the decree-holder towards the satisfaction of his decree and the question of delivery of possession to the auction-purchaser under Order 21, Rule 95 has nothing to do with the decree-holder and cannot be said to relate to execution, discharge or satisfaction of the decree, which has already been executed and discharged or satisfied. If the decree-holder is the auction-purchaser and has recorded satisfaction under Order 21, Rule 72 of the Code, the same result would follow and it cannot be said that anything further remains to be done towards the execution, discharge or satisfaction of the decree.

9. In any case, as was pointed out by the learned Chief Justice, again in Kedar Nath's case, the auction-purchaser is not a representative of the decree-holder but of the judgment-debtor and any dispute arising between the auction-purchaser and the judgment-debtor would amount to a dispute between the judgment-debtor and his own representative and cannot come under Sec. 47 of the Code.

10. The learned Chief Justice in Kedar Nath's case in support of his decision referred to a Full Bench decision of the Bombay High Court in Hargovind Fulchand v. Bhudar Raoji I.L.R 48 Bom. 550. a Full Bench of the Patna High Court in Tribeni Prasad Singh v. Ramasray Prasad Chaudhuri I.L.R 10 Pat. 670. and a Full Bench of the Oudh Chief Court in Gaya Bakhsh Singh v. Rajendra Bahadur Singh I.L.R 3 Luck. 182. as also the Division Benches of Lahore and Rangoon, in Punjab National Bank v. Biri Mal A.I.R 1930 Lah. 363., and J.A Martin v. S.M Hashim I.L.R 8 Ran. 162.. The Full Benches of the Calcutta High Court and the Madras High Court in Kailash Chandra Tarapdar v. Gopal Chandra Poddar I.L.R 53 Cal. 781. and Veyindramuthu Pillai v. Maya Nadan I.L.R 43 Mad. 107., which had taken a contrary view, were also discussed and it is not necessary for us to repeat all that was said in Kedar Nath's case or in the well considered judgment, if we may say so with respect, of Banerji, J., in Bhagwati v. Banwari Lal I.L.R 31 All. 82.. The consistent view of this Court has been that a decree-holder auction-purchaser is in no different position from any one else who might have purchased the property at an auction sale in execution of a decree and the same considerations should apply to both.

11. Before parting with this case, however, we may mention that the learned Judges referred this case for consideration by a larger Bench by reason of two Division Bench rulings of this Court—Moti Lal v. Makund Singh I.L.R 19 All. 477. and Babu Ram v. Piari Lal I.L.R 41 All. 479.. Moti Lal v. Makund Singh was decided before the Full Bench and after the decision of the Full Bench it is no longer good law. In Babu Ram's case the Full Bench in Bhagwati v. Banwan Lal was cited but the learned Judges did not follow that decision on the ground that the question for decision in that case before them, was the same as in Moti Lal's case which they purported to follow and which decision according to them had not been overruled by the Full Bench. We do not think that the learned Judges were right in that view, and in any case we have no hesitation in overruling the decision in Babu Ram v. Piari Lal on the ground that it does not lay down correct law. In our view the answer to the question must be in the negative.

12. The case may now be put up before the Bench concerned.

Mst. Suraj Dei J.D v. Mst. Gulab Dei D.H .

Structured Summary of the Opinion (Malik, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mst. Suraj Dei J.D v. Mst. Gulab Dei D.H .

Comments