Chamier, C.J:— Madhab Prasad, father of the Respondents, obtained a decree for money against the Appellant in execution of which he caused certain property of the Appellant to be sold. By leave of the Court he purchased it himself. He succeeded in obtaining possession of part of the property but in respect of the remainder he was obstructed by the Appellant who contended that it was not part of the property sold. Madhab Prasad died soon afterwards and his sons the present Respondents applied to the Court under Or. XXI, r. 95 to place them in possession of the disputed property. The Court allowed the application. Hence this appeal. The Respondents contend that no appeal lies.
The question thus raised is one on which there has been much conflict of judicial opinion during the last 30 years or more.
Some Judges have taken the view that an order under sec. 318 of the Code of Civil Procedure, 1882 or Or. XXI, r. 95 of the present Code disposes of a question “relating to the execution, discharge or satisfaction of the decree” within the meaning of sec. 244 of the Code of 1882 or sec. 47 of the present Code, and that where the question arises between the judgment-debtor and an auction-purchaser who was originally Plaintiff in the suit it is a question “arising between the parties to the suit” within the meaning of sec. 244 of the Code of 1882 or sec. 47 of the present Code, and the decision is consequently a decree within the meaning of sec. 2 of either Code and is appealable as such.
Other Judges have held that an appeal does not lie, either because the question is not one “relating to the execution, discharge or satisfaction of the decree” or because the question does not arise between the judgment-debtor and the decree-holder as such but between the judgment-debtor and the auction-purchaser as such.
In the Allahabad High Court after many conflicting decisions the question was referred to a Full Bench of five Judges with the result that three Judges held that an appeal did not lie, and the Chief Justice and Knox, J., held that an appeal did lie. [Bhagwati v. Banwari Lal].
In the Bombay High Court it has been held that an appeal does lie [Sadashiv v. Narayan Vithal].
In the Madras High Court it is now settled by a long course of decisions that an appeal does lie in such a case, but in two cases the Judges have expressed great doubt as to the correctness of those decisions [see Kattaydt v. Raynan Menon and Sandhu Taraganar v. Hussain Sahib].
In the Calcutta High Court it has been held in three cases that an appeal does lie in such a case [see Madhusudan Das v. Gobinda Priya Chaudhrain, decided without reference to the reported cases on the subject, Ram Narain Sahoo v. Bandi Per shad(6) and Hari Charan v. Monmohon]. The case of Sariatoolla Molla v. Raj Kumar Roy which was referred to deals with a different question but language was used in the judgment which supports the view that an appeal does lie in such a case.
In the same Court it has been held in seven cases either expressly or impliedly that an appeal does not lie [see Seru Mohan Bania v. Bhagoban Din and Iswar Pershad v. Jai Narain(10)], Appeal No. 207 of 1884 decided on July 20th, 1885, unreported, Kishori Mohun Roy v. Chunder Nath Pal, Bhimal Das v. Ganesha Koer, Mohomed Mosraf v. Habil Mia and Sasi Bhusan Mookerjee v. Radha Nath Bose where all the authorities are reviewed, and the decision in Bhimal Das v. Ganesha Koer has been expressly approved in Bhuja Roy v. Ram Kumar(15) and Jagamath Marwari v. Kartick Nath Pandey.
Much stress was laid upon the decision of their Lordships of the Privy Council in Prosunna Kumar Sanyal v. Kali Das Sanyal, but that case in no way affects the question which we have to decide and an order of the kind there in question is under the present Code of Civil Procedure appealable as an order and not as a decree [see Or. XXI, r. 90 and Or. XLIII, r. 1(j)]
Nor does the decision in Manickka v. Rajagopala which has been cited affect the present question, for that was a case under sec. 310A of the Code of 1882. The question whether an appeal lies against an order under that section or Or. XXI, r. 89 of the present Code depends upon other considerations [see Mahomed Akbar Zaman Khan v. Sukhdeo Pande(19)].
I am strongly of opinion that this Court should not without very good reason depart from a long course of decisions in the Calcutta High Court. I consider that the cases which I have referred to show that the balance of opinion in the Calcutta High Court has been since 1883 so strongly in favour of the view that an appeal does not lie in such a case, that we ought to follow it as if it were a settled cursus curiae. To do otherwise would cause great and unnecessary confusion. I would accordingly dismiss this appeal but under the circumstances-make no order as to costs.
Sharfuddin, J.:— I agree.
Atkinson, J.:— I agree.
Per Curiam.—The order of the Court is that the appeal is dismissed. There will be no order as to costs.
A.K.R
Appeal dismissed.