1. This appeal under Clause 10 of the Letters Patent from the judgment and decree of Pandey J., affirming those of the executing Court, raises the question whether on sale of land in execution of a decree for realisation of money, the auction-purchaser ipso facto acquires title to the growing crops. The learned Single Judge answered it in the affirmative. This is judgment-debtor's appeal.

2. Smt. Shyamabai had a decree against the appellant Chhatradharilal for recovery of money. In execution of that decree, extensive lands belonging to the judgment-debtor were attached and sold. The decree-holder herself purchased the property for Rs. 30,000/- in Court sale. A sale certificate declaring her to be the purchaser of Khudkasht and sir lands, area 300.86 acres in village Thelka, was issued. In the sale certificate, khasra numbers together with area of every one of them were specified. It was on an application filed by decree-holder's agent, asserting that the decree-holder was entitled to the growing crops also, that possession of the land alongwith standing crops was delivered to the auction purchaser, without notice to the judgment-debtor. The judgment-debtor then raised the objection that possession of the growing crops could not be given to the auction purchaser inasmuch as the standing crops were sown by him and that they were neither attached, nor sold in execution of the decree. He complained that it was excessive execution and prayed for restitution of the standing crops, i.e., restoration of possession of the crops; alternatively, Rs. 20,000/-as damages. The decree-holder purchaser resisted the above objection and also said that in case it be held that she was not entitled to the growing crops, she was liable to account for Rs. 5317/3/- only.

3. The 1st Additional District Judge, Raipur, who was executing the decree held that the judgment-debtor was not entitled to a notice of the auction purchaser's application dated 12 October 1960. Relying on Supdt. and Remembrancer of Legal Affairs, Bengal v. Bhagirath Mahto, AIR 1934 Cal 610, Arman Shaik v. Naimuddin Shaik, AIR 1936 Cal 157, Ramalinga v. Samaiappa ILR 13 Mad 15 and Afatoolla Sirdar v. Dwarka Nath, ILR 4 Cal 814, he held that the title to the growing crops automatically passed to the purchaser. The judgment-debtor took an appeal to this Court, which was dismissed by the learned Single Judge. Apart from the four decisions above mentioned, the learned Single Judge further relied on Atul Hazra v. Uma Charan, AIR 1916 Cal 339, Maung Kan v. Maung Po Tok, AIR 1939 Rang 388 and Beniprasad v. Manaklal, AIR 1953 Nag 9.

4. The law is that on an execution sale what passes to the purchaser is the right, title and interest of the judgment debtor in the property sold. Here, it is nobody's case that growing crops were specifically sold. What is contended by the purchaser is that merely because the land was sold to her, the crops growing on it must necessarily belong to her from the date of the sale. In my opinion, this contention must be rejected.

5. Section 8 of the Transfer of Property Act enacts, inter alia, that a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof; such incidents include, where the property is land, all things attached to the earth. But, by virtue of Section 2(d) of that Act, transfers in invitum are saved from the application of that section. Except Section 57 and Chapter IV, nothing affects a transfer in execution of a decree.

6. No doubt "immoveable property" as defined in Section 3(26) of the General Clauses Act, includes land, benefits to arise out of the land and the things attached to the earth, etc., so that standing crops would be immoveable property. But that definition is superseded by special definition contained in Section 2(13) of the Code of Civil Procedure:

"Where the right, title and interest of a judgment-debtor are set up for sale in execution of a decree as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for."

8. I would now turn to the decisions relied on by the executing Court and the learned Single Judge. ILR 4 Cal 814 was decided as back as in the year 1879, that is, much before 1908, when the present Civil Procedure Code was brought on the statute book. The special definition of moveable property in the present Civil Procedure Code was new. ILR 13 Mad 15, was decided in 1889. It was a case of mortgage decree, where stress was laid on the fact that the rights of both the mortgagor and the mortgagee were sold and that the right to standing crop had not been reserved. The case of ILR 61 Cal 991 : (AIR 1934 Cal 610) was an appeal against acquittal under Sections 147,342/34 and 323 of the Penal Code. No doubt, it was held there that growing crop passes with the land in the case of a court sale, no reasons are given, nor were the provisions of the Code of Civil Procedure considered. The next case, relied on is AIR 1916 Cal 339 a cage under Section 145, Criminal Procedure Code. There, it was held that the judgment-debtor should not be allowed to retain possession of land which was purchased and of which delivery of possession obtained by the decree-holder, even though it was found that the decree-holder was never in actual possession and the judgment-debtor grew crops upon the land. Obviously enough, in that case, the dispute was about possession of the land and the judgment-debtor sought to resist possession because of haying grown crops. Neither in that case, nor in AIR 1936 Cal 157 and AIR 1939 Rang 388 (both of which were criminal cases) Were the provisions of the Code of Civil Procedure considered. In the Rangoon case possession of growing crops had actually been given to the purchaser by the Civil Court. In AIR 1953 Nag 9 a Single Bench decision, the question was whether the decree-holder was entitled to standing crops at the time when possession of the land was delivered to him. That was not a case of sale in exepution of a decree. The learned Judge answered that question in the affirmative just by reference to AIR 1939 Rang 388 (supra) ; and AIR 1916 Cal 339 (supra) both of which were criminal cases and in both of which the questions for consideration were different. Another reason, which was given in Beniprasad case, AIR 1953 Nag 9 was that there was a local amendment to Order 20, Rule 14 (Preemption decree), Civil Procedure Code, to the effect that if there are crops standing on the property, possession of the property shall not be delivered to the plaintiff until such crops have been reaped, but no such amendment had been made to Order 21, Rule 35 of the Code. No other reason was given. Provisions of the Code of Civil Procedure were not considered.

9. If any of the decisions relied on by the learned counsel for the purchaser can be read as to hold that growing crops pass to the purchaser by virtue of the mere fact that the land has been sold in an execution sale, I am unable to subscribe to it.

10. To sum up the aforesaid discussion: (1) The law is that on an execution sale, it is the right, title and interest of the judgment-debtor in the property sold that passes to the purchaser. (2) What is sold is a question of fact, the determination of which depends upon considerations such as what was really put up for sale, what the Court intended to sell and what the purchaser had reason to think he was buying and what he paid for. (3) Where, a land is sold in execution of a decree for payment of money, the property in the growing crops does not pass to the purchaser ipso facto, unless the growing crops are specifically sold along with the land.

11. I would .now proceed to judge the present case by the above tests. It must be borne in mind that the procedure for attachment of growing crops and that for attachment of land are differently provided in the Code of Civil Procedure (Rules 44 and 54 of Order 21, Civil Procedure Code). Likewise, the procedure for sale of growing crops (Rules 74 and 75) is separate from that of sale of immoveable property (Rules 82 to 89). There is a remarkable difference between the procedure for delivery of possession in the case of growing crops and that in the case of land. To the proclamation of sale which was issued on 6 May 1960, under Order 21, Rule 66, Civil Procedure Code, a list of property to be sold was attached. That list gives in detail the Khasra numbers and the area of every khasra number, but there is no mention of any growing crops. The proclamation of sale is a very significant document. As provided in Order 21, Rule 66, C.P.C., it is required to be drawn up after notice to the decree-holder and the judgment-debtor and is required to specify as clearly and accurately as possible the property to be sold and every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property. The further requirement that such an application shall be accompanied by a statement signed and verified in the manner prescribed for signing and verification of pleadings, manifests the importance of the proclamation and its contents. The Rule further clothes the executing Court with power to enter into an enquiry for the purpose of ascertaining the matters to be specified in the proclamation. All this shows that the sale proclamation is the most valuable document for the purpose of ascertaining what the Court intended to sell. It is the foundation for the sale.

12. On 4 August 1960, the decree-holder's bid for Rs. 30,000/- was accepted. On 4 October 1960, the sale was made absolute. The sale certificate dated 6 October 1960 declared Smt. Shyamabai purchaser for Rs. 30,000/- of khudkasht and sir lands in village Thelka, area 300.86 acres per list attached therewith. In the list attached to the sale certificate were entered all khasra numbers together with the area of every one of them, but there is no mention of any growing crop. Thus, starting from the decree-holder's application for sale to the issuance of the sale certificate, at all stages, the khasra numbers are enumerated and their areas are specified, but there is no mention any where of the growing crops. The procedure that was throughout taken recourse to was one provided for attachment and sale of immoveable property, that is, land.

13. On 7 October 1960, the purchaser applied for delivery of possession. A list pf khasra numbers and their areas was attached. In the application there is :no mention of any growing crops, but the words "Mai Fasal Ke" appear as an interpolation in the list. The list is drawn in pencil but the words "Mai Fasal Ke" are added in ink. To the warrant of possession dated 10, October 1960 were attached two carbon copies of the same list. There also are visible similar interpolations. At first the words "Mai Fasal Ke" were added after the words "Dakhal qabza pana hai." Then they were scored but and those words were written between the lines before the words "Dakhal qabza pana hai." It is not necessary to probe deeper into the question whether these words were written before the presentation for possession. The application dated 12 October 1960 filed by Gayaram, on behalf of the decree-holder, reads thus:

"(1) That oh 7-10-60 the auction purchaser applied for being put in possession of the properties on which she has been declared purchaser in the Court sale.

(2) That as there are growing crops on the land of which she has been declared the purchaser, she is entitled to be put in possession of the same along with the growing crops.

(3) That by inadvertent mistake, the auction purchaser omitted to state in her application for possession that she be put in possession of the land sold to her along with the " growing crops."

Thus, it is for the first time, in the application dated 12 October 1960, that the right to be put in possession of the growing crops was asserted as a legal proposition (vide para 2) and. it was on the same day and behind the back of the judgment-debtor that the Court made an order allowing Gayaram's application; and on the same day delivery of possession was effected by the Nazir.

14. Adverting now to the consideration what the purchaser paid for, it may be mentioned that the area of the land sold is 300 odd acres. It was sold for Rs. 30,000/-. In his objection, complaining excessive execution, the judgment-debtor claimed Rs, 20,000/- as damages for the growing crops. The decree-holder admits in her reply dated 21 February 1960 that she took possession of the standing crops on 50 acres only, i.e., 30 acres with paddy crop and 20 acres with Til crop. She admits that if she is found not entitled to the growing crops, she is liable to pay Rs. 5317/3/-. Now it is quite clear from this that if the value of the crops in 50 acres was Rs. 5317/3/- (assuming it to be so on the purchaser's own showing), the net value of the crops in 300 acres, after giving allowance to the expenses incurred for harvesting and threshing and other incidental expenses, would roughly come to Rs. 31,000/- and more. Such being the value of the produce, it is not possible to hold that to spite of there being no mention of growing crops in the proclamation of sale, the purchaser understood that she was buying the crops also along with the land.

15. The irresistible conclusion from these facts and circumstances is that growing crops were not intended to be sold, nor were they sold, nor did the purchaser understand that she was buying them, nor did she buy them, nor did she pay for them. The judgment debtor is entitled, by way of restitution to get from the purchaser the market price of the crop;s which were standing on 12 October 1960 on those fields which were in the actual cultivation. The case of others is not before us.

16. It remains to be mentioned that a preliminary objection was raised for the respondent. Shri Adhikari contended that no appeal lay from the order of the executing Court whereby the judgment-debtor's application of 1 November 1960 was dismissed. Firstly, this objection, having not been raised before the learned single Judge who decided the appeal cannot be raised for the first time in this Letters Patent Appeal. Moreover, I see no substance in the preliminary objection. The judgment-debtor clearly complained that there had been excessive execution and also that the purchaser's application for delivery of possession of the growing crops was allowed without notice to him. These questions undoubtedly fall within the purview of Section 47, Civil Procedure Code.

17. The appeal is allowed. The judgments and decrees of the learned Single Judge and the executing Court are set aside. It is held that the purchaser was not, but the judgment-debtor (appellant) was, entitled to the crops standing oh the land when possession was given to the purchaser. The case shall go back to the executing Court for giving to the appellant appropriate relief as held above. The .appellant shall have his costs throughout from the purchaser. Counsel's fee in all the Courts Rs. 300/- (consolidated).

Naik, J.

18. This is a Letters Patent Appeal against the judgment of Pandey, J. I agree with my learned brother that the appeal should be allowed for the reasons which follow.

19. The only question that arises for consideration in this appeal is whether, under the circumstances of the case, the decree-holder auction-purchaser was, on his purchase of the lands in suit at a court-auction in execution of a money decree, automatically entitled to the crops sown on the lands by the judgment-debtor appellant prior to its purchase by the former.

20. The learned single judge answered the question in favour of the decree-holder auction-purchaser, holding inter alia--

(1) That on 4-8-1960, on which date the decree-holder auction-purchaser purchased the suit lands at a court-auction and from which date the suit lands must be deemed to have vested to him, there could be no standing crops but only seeds which had just sprouted'.

(2) That in Rule 14 of Order XX of the Code of Civil Procedure, relating to execution of decrees in pre-emption suits, 'crops standing on the property' are expressly saved from being delivered to the decree-holder auction-purchaser by a local amendment; and as there is no such provision in Rule 95 of Order XXI of the Code, 'it may legitimately be inferred that it is intended that the auction-purchaser would be entitled to the crops standing on land of which possession is delivered to him'.

(4) On 4-8-1960, the auction-sale of the fands aforesaid was completed and it was knocked down in favour of the decree-holder auction-purchaser for a sum of Rs. 30,000/-. By this date, the lands had been sown by the judgment-debtor and the crops at least in the sense of 'sprouted seeds' were standing on the lands.

(10) The decree-holder auction-purchaser cut and removed the crops and objected to the application of the, judgment-debtor for restoration of possession of the crops. She further alleged that in case it was held that she was not entitled to the growing crops, she was not liable to account for more than Rs. 5,317/13/-which was the total net value of the crops received by her.

(11) Both the executing Court and the learned single Judge have held that the decree-holder auction-purchaser, by virtue of the auction-sale of the lands to her was also entitled to the crops standing thereon on the date of the sale.

22. It was first contended that seeds which had just sprouted could not be called growing crops. There appears no justification for this distinction. Growing crops have not been defined in the Code of Civil Procedure; but their dictionary meaning is 'growing plants of cereals' and a 'plant' means 'a living organism capable of living wholly on inorganic substances and having neither power of locomotion nor special organs of sensation or digestion'. Seeds which have even just sprouted would come within the aforesaid definition. Paddy takes about three days for germination and is ordinarily sown at the latest by the first week of July. Consequently, it must have taken the shape of a growing crop. Same would be the case with the other crops sown on the lands at about the same time. It cannot, therefore, reasonably be said that there was no growing crops on the lands in suit on 4-8-1960 which could be claimed by the judgment-debtor appellant under the circumstances of the case.

23. It is not disputed that at the time the lands were attached or proclaimed for sale, there were no standing crops thereon. None was, therefore, attached or proclaimed for sale. What was, therefore, intended to be sold was land simpliciter and what the auction-purchaser understood that he paid for or bought was also land only and not the land with crop. Under the circumstances, the decree-holder auction-purchaser could legitimately lay claim to the lands only and not to the lands and the crops growing thereon.

24. It is settled law that in a court auction-sale the question is not what the Court could or should have sold but what it 'had sold'. In the words of Lord Watson, during the course of the arguments in Pettachi Chettiar v. Sangili Veera Pandia Chinnathambiar, 14 Ind App. 84 at p. 85 (PC) the questions were what did the Court intend to sell and what did the purchaser understand that he bought. These are questions of fact or rather questions of mixed law and fact and must be determined according to the evidence in the particular case: Tara Lal Singb v. Sarobar Singh 27 Ind App 33 (PC). These tests were again referred to with approval in 31 Ind App 1 (PC) at p. 8 where their Lordships of the Judicial Committee said:

"Each case, however, must depend upon its own circumstances, and 'in all the cases, at least the recent cases, the inquiry has been what the parties contracted about if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree' : Simbhunath Pande v. Golab Singh, 14 Ind App 77 at p. 83 (PC). As Lord Watson puts it in the course of the argument in the case of 14 Ind App 84 (PC) in the case of a sale in execution of a money decree, 'the questions are what did the Court intend to sell, and what did the purchaser understand that he bought?'. These are questions of fact, or rather of mixed law and fact, and must be determined according to the evidence in the particular case."

25. Order 21, Rule 66 of the Code of Civil Procedure requires that where any property is ordered to be sold by public auction in execution of a decree, the proclamation of sale shall 'specify as faily and accurately as possible the property to be sold'; and under Rule 94 of Order XXI, where the sale has become absolute, the Court shall grant a certificate 'specifying the property sold'. As stated by the Privy Council in Thakur Barmha v. Jiban Ram Marwari, 41 Ind App 38 at p. 43 (PC):

"That which is sold in a judicial sale of this kind can be nothing but the property attached, and that property is conclusively described in and by the schedule to which the attachment refers."

In the words of Batty, J. in Balvant v. Hira-chand, ILR 27 Bom 334 at p. 341

"The real question .. .. ..seems therefore to be what was, the sale, i.e., what was bargained and paid for, and that must depend not on erroneous statements of what was offered for sale, but on what was actually offered for sale and bid for. What was offered for sale was determined by the order of the Court and the proclamation."

26. While considering the question as to what passes by a court auction-sale, the Supreme Court in AIR 1959 SC 282 at p. 289 said :

"The question which assumes importance in an auction sale of this kind therefore is what did the Court intend to sell and did sell and what did the auction-purchaser purport to buy and did buy and what did he pay for ..... The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree.

Mt. Nanomi Babuasin v. Modun Mohun 13 Ind App. 1 (PC); Bhagbut Pershad v. Mt. Girja Koer 15 Ind App 99 (PC), Meenakshi Nayudu v. Immudi Kanaka Ramaya Goundan, 16 Ind App 1 (PC), Rai Babu Mahabir Pershad v. Rai Markunda Nath Sahai 17 Ind App 11 at p. 16 (PC) and Daulat Ram v. Mehar Chand, 14 Ind App 187 (PC)."

27. I am, therefore, of opinion that as the crops were neither charged, nor proclaimed for sale, nor auctioned, nor bid for; nor purchased at the said auction-sale, the decree-holder auction-purchaser got no title to it.

28. It may here be mentioned that under the Code of Civil Procedure, growing crops are moveable property: (see Section 2(13) of the Code of Civil Procedure). They shall, therefore, have to be specifically attached and sold as a piece of moveable property before the auction-purchaser could get any title to them. If not so sold, but only the land on which they were growing was sold, the auction purchaser would get title only to the land and not to the growing crops which, not having been attached or sold, would continue to belong to their owner.

29. It is, however, argued that under Section 8 of the Transfer of Property Act a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, which include all things attached to the earth, i.e., growing crops. The section, however, has no application to Court sales because of the provisions of Section 2(d) thereof; and even the principle underlying the section can have no application, in the first place, because the section applies 'unless a different intention is expressed or necessarily implied', and a different intention is necessarily implied because, under the auction-sale in question which was the foundation of the title of the decree-holder auction-purchaser, the growing crops were neither intended to be sold nor bid for, nor paid for, nor bought by the decree-holder-auction-

purchaser. Her sale certificate also did not include the standing crops growing on the lands purchased by her. Secondly, whereas growing crop is immovable property under the General Clauses Act, it is movable property under the Code of Civil Procedure. Even under the Transfer of Property Act, 'immovable property' does not include 'growing crops': (see Section 3 of the Transfer of Property Act and Section 2 of the Civil Procedure Code). Consequently, by the mere sale of the lands, the crops growing thereon could not be deemed to have been sold. Thirdly, the Code of Civil Procedure prescribes different modes of execution for the sale of lands and growing crops; and as the method of execution adopted in the instant case was in relation to execution by sale of immovable property Only, it can reasonably be inferred that growing crop was not intended to be sold.

30. Reliance was placed on an old English principle, which was followed in some of the reported cases in India prior to the coming into operation of the Transfer of Property Act, that on an auction-sale of land, the crop growing thereon automatically passes to the auction-purchaser. The principle of English common law, which is of great antiquity, is founded on the legal maxim: 'Quicquid plantatur solo, solo cedit'. As pointed out by Gour in his commentary on the Transfer of Property Act,

"the principle, which now appears to be so simple, has had to fight its way to recognition through the tangled mass of heterogeneous devices against allowing the free alienation of property. At first through subterfuges, and then gradually by the interpretation of equity, the right of alienation had had to be recognised and with it became established the sensible doctrine here enunciated."

See para 360 at p. 246 of Sir Hari Singh Gour's Transfer of Property Act, Vol. I, Sixth Edition.

But, even before the coming into force of the Transfer of Property Act, the principle had not been accepted in India. Examining the question, Mooker jee and Carnduff, JJ. in Mofiz Sheikh v. Rasik Lal Ghose, ILR 37 Cal 815 at pp. 820-821 said:

"These cases (Berriman v. Peacock ( 1832) 9 Bing 384 : 35 R.R. 568, Penton v. Robart ( 1801) 2 East 88 : 61 R R. 376, Wyndham v. Way (1812) 4 Taunt 316 : 13 R. R. 607, Wardell v. Usher, ( 1841) 3 Scott N. R. 508 : 60 R. R. 645, Empson v. Soden, (1833) 4 B. and Ad. 655, Jenkins v. Gething ( 1862) 2 J&H. 520) are based on the principle that whatever is affixed to the soil becomes, in contemplation of law, a part of it, and is subject to the same rights of property as the soil itself. The maxim quicquid plantatur solo, solo Cedit is, as Broom points out (Legal Maxims, 305), one of great antiquity, and has been treated as a part of the law of England from very early times. This is clear from a significant passage in Bracton (edited by Sir Travers Twiss, Vol. I, p. 79, Book 2, Chap. 2, Section 6): 'Whatever is planted, sown or built in, belongs to the soil, if root has struck.' The same reason is assigned by Britton and Fleta for the position that, if trees are planted or seeds sown in the land of another, the owner of the Soil becomes owner also of the tree, the plant, or the seeds as soon as it has taken root (Britton, Book II, Chap. 2, Section 6; Chap. 12, Section 2, Ed. Nichols, Vol. I, pp. 217, 288; Fleta, Book III, Chap. 2, Section 12, pp. 176, 177,220.) It may be conceded, therefore, that, under the law of England, a tree planted by the tenant on his holding cannot ordinarily be removed by him on the ground that the property in the tree is vested in the owner of the soil. The question, therefore, arises, how far this doctrine, based upon a law of fixtures, was applicable to this country before the Transfer of Property Act came into operation. We have been invited by the learned vakil for the landlord to hold that the principle is one based on justice, 'equity and good conscience, and consequently applicable to this country. We are unable to adopt this contention as well founded. The tenant who has taken the land is bound, Upon the termination of his tenancy, to restore the land to his landlord in the same condition in which he took it ; but it is difficult to appreciate upon what intelligible principle he may be compelled to leave on the land trees grown and structures erected by him for his own benefit. It must further be remembered that the tendency under English law has been to restrict rather than to enlarge the scope and operation of the Law of Fixtures, and various exceptions have been allowed in favour of trade fixtures and agricultural fixtures: Bain v. Brand, ( 1876) 1 AC 762 at p. 772, Mears v. Callender, (1901) 2 Ch. 388, notes to Elwes v. Maw, ( 1802) 2 Sm. LC 189 (211) : 3 East 38 while in American Courts, when an attempt was made to apply in its entirety the doctrine that whatever is once annexed to the freehold becomes part of it, and cannot afterwards be removed except by him who is entitled to the, inheritance. Mr. Justice Story, in delivering the unanimous judgment of the Supreme Court of the United States, declined to give effect to the contention on the ground that the Law of Fixtures was not suited, in its unqualified form, to the circumstances of the country: Nees v. Pacard (1829) 2 Peters, 137. Under such circumstances, it would obviously be inappropriate to extend the doctrine of Fixtures to this country as based on equitable grounds. This position is fortified when we remember that neither the Hindu Law nor the Mahomedan Law recognised any Law of Fixtures, as was pointed out by Sir Barnes Peacock, C. J. in the case of Thakoor Chunder Paramanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228"

The general principle, which obtained in India, was enunciated by their Lordships of the Calcutta High Court in 6 Suth WR 228. They said--

"We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking to the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess."

31. We have, however, to remember that we are not dealing with transfers in general but with a sale in execution of a decree where different considerations necessarily prevail.

Consequently, I am of opinion that there is no warrant for the proposition that as a general rule a growing crop, simply because it derives nourishment from the soil on which it grows, partakes the character of the land and passes as such to an auction-purchaser on an auction sale of the land simpliciter.

32. The contention that a decree-holder auction-purchaser on getting possession of land becomes entitled to the crop then growing thereon on the analogy of the local amendment in Rule 14 of Order XX of the Code of Civil Procedure is also not correct. The local amendment in Rule 14 of Order XX relating to decrees in pre-emption suits was introduced by the High Court in about the year 1947 and was dropped in about 1960. But even before the introduction of the amendment, Kotval, A.J.C. in Bapu v. Vithoba AIR 1923 Nag 327 had held that where in a pre-emption suit a decree was passed for possession but there was no mention of crops in the decree, the defendant was entitled to remove the crops before preemption money was paid into Court; but after the pre-emption money had been paid, the defendant had no right to the crops because, as soon as the plaintiff paid the pre-emption money, he became the owner of the land with its legal incident, the crops attached to it. The judgment proceeded on the application of Section 8 of the Transfer of Property Act to the facts of the case, and consequently it could have no relevance to cases to which the Section 8 did not apply. It appears that the local amendment was giving effect to Section 8 of the Transfer of Property Act while passing decrees in pre-emption suits. No help can, therefore, be drawn from the language of decrees in preemption suits, especially when the provisions of Section 8 of the Transfer of Property Act have no application to execution sales.

33. I shall now briefly examine the cases on which reliance is placed for the proposition that on the decree-holder auctiom-pur-chaser being put in possession of the land, he automatically becomes entitled . to the crop growing thereon whether the crop standing on the land was attached, proclaimed for sale or auctioned, or not.

34. The first case relied on is reported in ILR 4 Cal 814. The case was decided in the year 1879 when neither the Transfer of Property Act nor the Code of Civil Procedure had come into existence. The case related to an auction-sale of an under-tenure which had fallen into arrears of rent during the proceedings relating to execution of the decree against the tenant. The sale was under Section 66 of the Bengal Landlord and Tenant Act, 1869. The under-tenant had raised some paddy on the land, and at the time of the execution sale the unharvested crop was standing on the land. The sale certificate did not mention that the unharvested crop had been sold to the purchaser. On the defendant auction-purchaser having cut and misappropriated the crop, the plaintiff under-tenant brought an action against him for recovery of damages. The case was tried as a suit of Small Causes, and the Judge of the Court of Small Causes referred the following question for the decision of the High Court :

"Whether the unreserved sale of an under-tenure under Section 66 of the Landlord and Tenant Act of 1869 vests in the auction-purchaser a right to the crop standing thereon'"

No one appearing for the plaintiff or the defendant, Jackson, J., in a very short judgment, inter alia, held--

"The sale of the tenure would apparently pass all that was growing upon the land, unless the growing crops were excepted by the notification of sale, or else a custom was proved that the outgoing ryot should have the crops subject to a payment for use and occupation of the land while they remained on the ground."

It appears that, in the absence of the Transfer of Property Act and the Code of Civil Procedure, the learned Judge was basing his conclusion on the rule of the English law that whatever is attached to the land partakes, in contemplation of law, the character of the land and passes with the land on its transfer without express mention, unless specifically excepted. The principle was based on the maxim: 'Quicquid plantatur solo solo cedit', which has many exceptions even in the common law of England and which, as already pointed out above, has no application to the law in India. That apart, the case shall now be governed by the provisions of the Code of Civil Procedure as the provisions of the Transfer of Property Act have no application to execution sales. Under the Code of Civil Procedure, not only growing crops is movable property, which shall not automatically pass with the land by its sale, but, as pointed out above, at a Court auction-sale that alone passes which the Court intended to sell and which the purchaser did buy and pay for. No help can, therefore, be derived from the decision in this case. It may here be noted that the correctness of the judgment in Afatoolla's case ILR 4 Cal 814 was doubted by Caspersz and Sharfuddin JJ. in Gajendra Ghorai v. Emperor 15 Cal LJ 80 where they said,

".. .. we are not prepared to accept the contention that possession of the land would necessarily connote delivery of possession of the crop grown thereupon. On this point, Mr. Justice Jackson in ILR 4 Cal 814, the case to which the District Magistrate has referred, expressed his judgment with some uncertainty. He was then dealing with the sale of an under-tenure for arrears of rent under Section 66 of Bengal Act VIII of 1869."

35. The second case relied on is ILR 13 Mad 15. This was again a case decided in 1889, i.e., prior to the coming into force of the Code of Civil Procedure of 1908.

This decision is again based on what the learned Judge is pleased to call 'the ordinary rule', which he says the Sub-Judge had overlooked. There is no discussion- to show from where the rule relied on was derived. From his further discussion it, however, appears that probably he had either the rule of the English common law or the provisions of Section 8 of the Transfer of Property Act in mind, because the learned Judge proceeded to observe that 'the doctrine of emblements' had no application in the case as a mortgagee was not one of the persons entitled to emblements and could not, therefore, rely on Section 51 or Section 108(1) of the Transfer of Property Act, which only declared the pre-existing law on the subject. It appears to have been overlooked that the provisions of the Transfer of Property Act had no application to execution sales, which were governed by different considerations as explained above. Reliance was placed by Muttusami Ayyar, J. on a decision reported in Land Mortgage Bank of India v. Vishnu Gobind Patankar ILR 2 Bom 670 wherein it was pointed out:

"No case has been cited to us in which the ordinary rule as to emblements has been applied to the case of a mortgagor retaining possession after the time had expired which had been allowed to him for payment of the sum due on account of the mortgage. His position, being that of a person acquainted with the imperfection of his title, and one entirely of his own choosing, seems to us to fall under quite a different principle from that of the tenant at will cultivating on a reasonable expectation of reaping what he has sown, or of a holder, whose right is put an end to by a wholly uncertain event."

The case was again decided in 1879, and consequently was based on the English common law which, in any case, had no application to execution sales in India. No doubt, the case was followed in Narbadapuri v. Bholanath Kasturchand 15 C.p. L.R. 141 but the case before the learned Judicial Commissioner was not one of execution sale and his conclusions were based on the application of Section 8 of the Transfer of Property Act to the facts of the case. That case is, therefore, distinguishable. Ismay, J.C. said:

"Under Section 9 of the Transfer of Property Act 'unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all' the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include all things attached to the earth, i.e., (Section 3) rooted in the earth. This is only an amplification of the maxim Quicquid plantatur solo solo cedit. Whatever is affixed to the soil becomes in contemplation of law a part of it and is consequently subject to the same rights of property as the soil itself."

The aforesaid discussion can have no relevance to sales in execution of decrees.

36. ILR 61 Cal 991 : AIR 1934 Cal 610 was a criminal case where a Division Bench of the Calcutta High Court while considering the correctness of a charge to the jury in regard to the plea of private defence of property, raised by the accused, said:

The proposition that the right to the growing crop passes by the sale of, the land, in the absence of an express provision to the contrary, and the connected proposition that, in the case of a court sale, the right to the possession of the crops accrues from the date of delivery of possession of the land, hardly requires to be supported by authority, but if authority be needed, it is sufficient to refer to ILR 13 Mad 15 and Abinash Chandra Sarkar v. King-Emperor, 23 Cal WN 385 : ( AIR 1919 Cal 588).

The decision was thus sauarely based on the authority of Ramalinga's case ILR 13 Mad 15 (supra) which, as pointed out above, besides having been decided prior to the coming into operation of the Code of Civil Procedure, 1908, had also not taken note of the fact that neither the English common law doctrine nor the provisions of the Transfer of Property Act applied to execution sales.

37. AIR 1936 Cal 157 was a criminal case arising out of a conviction of the accused-applicants of offences under Section 143 and 427 of the Indian Penal Code. The allegation was that the applicants-accused, who had been put in possession of the land and crop in question by a Civil Court under Rule 95 of Order XXI of the Code of Civil Procedure, had dishonestly cut the crop from the land of the complainant. The accused were the persons who had been put in possession of the land together with the paddy crop standing thereon under Rule 95 of Order XXI of the Code of Civil Procedure. The complainant was the person whom the auction-purchaser accused were trying to oust. The crop had been sown on the land by the complainant. The complaint was that the accused had cut and taken away the unripe crop from the land of the complainant. The High Court, allowing the application in revision, held that the applicants having been put in possession of the land and crop under Rule 95 of Order XXI of the Code of Civil Procedure, were entitled to cut the crop, and that their convictions under Sections 143 and 427 of the Indian Penal Code could not be supported. I find nothing in this decision which could support the decree-holder auction-pur-. chaser's claim.

38. In AIR 1939 Rang 388 was a case under Section 145 of the Code of Criminal Procedure. It, no doubt, states the proposition, relying on Aung Baw v. Tun Gaung 3 Low Bur Rul 129, that 'where the decree-holder is put in possession of land, such possession includes the standing crops; and the judgment-debtor cannot re-enter in order to reap and dispose of the crops which he had cultivated upon the land'. It also adopted the observations of Chitty and Walmsley, JJ. in AIR 1916 Cal 339 to the effect that--

"It seems contrary to all principles of justice that a judgment-debtor should be allowed to retain possession against his decree-holder who has actually been given possession against him by a Civil Court, and, in a criminal proceeding, to assert that possession and, by force of the order of the Magistrate, drive the decree-holder and auction-purchaser back to the Civil Court for a further declaration of his right."

In this case, notwithstanding that the crop had been grown by the judgment-debtor, party No. 1, who was also in actual physical posses-

sion of the land on which the crop had grown, an order of the trial Court declaring him entitled to possession under Section 145 of the Code of Criminal Procedure was set aside because, in the opinion of the learned Judge (Mya Bu, J.), it was contrary to all principles of justice. With respect, the decision is contrary to the well-established principle that in proceedings under Section 145 of the Code of Criminal Procedure, the Courts are not concerned with questions of title but only with the actual physical possession of the land in dispute; but that apart, in has no relevance to the question with which we are concerned in this case.

39. AIR 1953 Nag 9 was a judgment dismissing a miscellaneous second appeal in limine under Rule 11 of Order XLI of the Code of Civil Procedure without notice to the other side. In this case, the learned single Judge, relying on AIR 1939 Rang 388 and AIR 1916 Cal 339 (supra) held that when a decree-holder is put in possession of land under Rule 35 of Order XXI of the Code of Civil Procedure, such possession includes crops standing on that land. There is no discussion of the principle on which the conclusion was based; and the decisions in AIR 1939 Rang 388 and AIR 1916 Cal 339 (supra), on which reliance was placed, do not in my opinion warrant the proposition. Rule 35 of Order XXI deals with modes of execution of a decree for delivery of immovable property, which is not the case here. Under the Code, standing crop is not immovable property, and there was no decree in respect of standing crop. Consequently, that decision is no authority for the proposition that on an auction-sale of land simpliciter, any crop standing thereon automatically passes to the auction-purchaser.

40. On the other hand, we have a judg ment of Mookerjee and Beachcroft, JJ. in Priya Nath Pal V. Kamini Dasi 16 Cal WN 1101 which lays, down that "where after pur chasing a holding at an execution sale and taking delivery of possession thereof through Court, the plaintiff suffered the tenant to grow crop on the land, the plaintiff could not sue for recovery of the value of the crop cut and taken by another, because the crop did not become the plaintiff's property as soon as it was grown merely because the plaintiff had acquired ownership of the land. The learned Judges said:

"It was pointed out by this Court in the case of ILR 37 Cal 815 that the English Law of fixtures cannot be applied in this country as based on equitable grounds. No doubt, under the mediaeval English law as laid down in Bracton, whatever is planted, sown or built on belongs to the soil if root has struck; or as Britton and Fleta put it, if trees are planted or seeds sown in the land of another, the owner of the soil becomes owner, also of the tree, the plant or the seed, as soon as it has taken root. But that has never been the law in this country .. .. . As already stated, the sale took place on the 19th May; possession was delivered to the plaintiff on the 19th August; the crops were then grown by the second defendant and remained on the land till the 25th December. During this period extending over many weeks, the second defendant must have been in actual occupation of the land, although in the eye of law, possession might have been with the plaintiff. Neither authority nor principle can be invoked in support of the proposition that merely because the plaintiff became the owner of the land on the 19th May, and the crops were grown thereon by the second defendant after that date, the crops as soon as they were grown became the property of the piaintiff."

It was, however, pointed out that the plaintiff may possibly be entitled to mesne profits if the second defendant continued in occupation of the land after her title had been extinguished by the execution sale.

41. I am, therefore, of opinion that by the sale of the land simpliciter, the decree-holder auction-purchaser acquired no title to the crops standing thereon, which continued to vest in and belong to the judgment-debtor appellant.

42. It was also contended that the appeal was incompetent under Section 47 of the Code of Civil Procedure. The question was not raised before the learned single Judge and, in my opinion, there is no merit in it.

43. That Section 47 of the Code of Civil Procedure should be liberally construed admits of no doubt, because, as far back as 1892, the Judicial Committee of the Privy Council in Prosunno Commar Senyal v. Kasi Das Senyal 19 Ind App 166 (PC) had pointed out that it was of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships further noted that they were glad to find that the Courts in India had not placed any narrow construction on the language of Section 244 (now Section 47) of the Code of Civil Procedure; and that when a question had arisen as to the execution, discharge, or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser, who was no party to the suit, was interested in the result had never been held a bar to the application of the sec-lion. Applying the aforesaid principle, I see no reason to deny to the judgment-debtor a right to agitate in the executing Court the question that there has been excessive execution, in that growing crops, which had neither been sold nor included in the sale certificate, had been given possession of to the decree-holder auction-purchaser without notice to him.

44. In Duljeet Gorain v. Rewul Gorain, 22 Suth WR 435 at p. 436, Phear, J., speaking on the point, said:

It is immaterial whether the erroneous action of the Court was due to carrying into effect a wrong decree or whether it was due to execution proceedings wrongly conceived for the purpose of carrying out a right decree. In either case the Court, upon the error being ascertained, is bound, so far as it can, to place the aggrieved party back in his original position, and to take means not merely to restore to him the property of which he had been wrongly deprived but also to give him compensation for such loss as he had thereby sustained. It is competent to the Court in the course of the execution proceedings to afford the aggrieved person this remedy in full. When a complaint on a ground of this kind, namely, that erroneous process of execution has been issued and enforced, is made during the progress of execution proceedings or in the course of proceedings after decree, it. is in fact a question regarding the execution of the decree, which falls within Section 11, Act XXIII of 1861 (now Section 47 of the Code of Civil Procedure, 1908). It is, therefore, not only a matter which can be decided by the Court in the course of the execution proceedings, but which must be so decided by that Court and cannot be entertained in the form of a regular suit.

Relying on the aforesaid case, Ghose and Rampini, JJ. in Biru Mahata v. Shyama Charn Khawas ILR 22 Cal 483 held that under Section 244 (now Section 47) of the Code of Civil Procedure no separate suit will lie for the recovery of lands taken by the decree-holder in excess of the terms of his decree if the decree-holder has been put in possession of such lands by the officer of the Court executing the decree.

45. In Keshori Singh v. Umrao Singh 20 Nag LR 90 : (AIR 1924 Nag 246) the facts were that a judgment-debtor applied to the executing Court for enquiry into the fact that certain property belonging to him was attached or taken possession of by the decree-holder under colour of the decree, but not listed or returned to him, it was held that the matter was one in which the Court could not decline to hold the enquiry under Section 47 of the Code of Civil Procedure and refer the judgment-debtor to a regular suit. In J. Marret v. Md. K. Shirazi and Sons, AIR 1930 PC 86 at p. 90 the plaintiff obtained a decree only against one of the two defendants F. and M., viz., F., but wrongly took in execution monies which had been paid by a surety of M., because of an erroneous construction of the surety bond. The learned Judicial Committee said:

" .. .. .. there seems to be another answer to the case, and that is, that, by Section 47, Civil Procedure Code, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution and satisfaction of the decree shall be decided by the Court executing the decree. It is plain to their Lordships that the question in this case arises between the parties to the suit and relates to the satisfaction of the decree. So far as the order for payment out is concerned, it is expressed to be in satisfaction of the decree, it has no other meaning, and that in itself precludes any cause of action by the present plaintiff in the present suit."

46. The objection that the judgment-debtor's objection could not be enquired into under Section 47 of the Code of Civil Procedure has thus no substance and is hereby rejected.

47. The question then arises whether the decree-holder auction-purchaser would be entitled to any compensation or mesne profits for the continued occupation of the lands by the judgment-debtor by allowing his crops to grow thereon even after his title to the lands had been extinguished by the execution sale. It is not necessary for me to consider the problem in this case, because, in order to claim mesne profits, the decree-holder auction purchaser shall have to bring a separate suit claiming them on such basis as she thinks fit. I am, however, clear that she could not claim to retain the crops reaped by her in lieu of her claim for mesne profits, if any, in these proceedings.

48. So many years have elapsed since the crops were cut, and there has also been no proper investigation as to the value of the crops grown so far. The case shall, therefore, have to be remanded to the original Court for the purpose of determining the value of the crops grown on the lands to which the judgment-debtor would be entitled.

49. The appeal is allowed with costs. Counsel's fees Rs. 300/- for all the Courts.

BY COURT:

50. The Judgment of the Court was delivered by NAIK J. The appeal is allowed with costs. Counsel's fee Rs. 300/- for all the Courts.

51. The case shall now go back to the original Court for the purpose of determining the value of the crops grown on the suit lands to which the judgment-debtor would be entitled.