Tribeni Prasad Singh v. Ramasray Prasad Chaudhari

Jwala Prasad, J.:— The question referred to the Full Bench runs as follows:

“Whether a suit instituted by the decree-holder auction-purchaser or his representative-in-interest for recovery of possession of the property purchased in execution of the decree is barred by the provisions of Section 47 of the CPC; or, in other words, whether a decree-holder who becomes a purchaser of the property sold in execution of his own decree ceases as such to be a party to the suit, and whether the question relating to the delivery of possession of the property purchased by the decree-holder auction-purchaser is a question relating to the execution, discharge or satisfaction of the decree.”

2. The facts giving rise to the reference may be briefly stated. In execution of a mortgage decree obtained against the ancestors of the defendants 1st party the mortgaged properties were sold and purchased by the decree-holder himself on 30th May 1914, with leave obtained from the Court under O. 21, R. 72 of the CPC. The judgment-debtors filed an application under O. 21, R. 90 and S. 47, of the Code for setting aside the sale. The application was rejected, and the sale was confirmed by Order No. 50, dated 22nd May 1915. On appeal the order of the Subordinate Judge disallowing the objection of the judgment-debtors and confirming the sale was upheld by the High Court on 3rd August 1917 (vide judgment Ex. 12). On confirmation, the sale became absolute under O. 21, R. 92, and the property vested in the purchaser under S. 65 with retrospective effect from the time of the sale which had taken place on 30th May 1914.

3. The proceeds of the sale were sufficient to satisfy the decree in full. Accordingly, the Court executing the decree entered up satisfaction of the decree and dismissed the execution case on full satisfaction under O. 21, R. 72(2) on 26th May 1915, recording an order to that effect in the order-sheet as well as in the register of mortgage suits Ex. 16.

4. In 1926 defendants 3rd party the heirs and legal representatives of the decree-holder-purchaser, sold the properties to the plaintiff. After his purchase the plaintiff tried to take possession of the properties, but the judgment-debtors defendants 1st party prevented him from doing so. Hence on 29th May 1926, the plaintiff instituted the present suit to recover possession of the properties with mesne profits, basing his title on the purchase at the execution sale and stating that the cause of action arose on 26th May 1915, the date on which the sal was confirmed as well as in the month, of Baisakh, 1333 Fasli when the defendants 1st party prevented him from taking possession. The defendants resisted the plaintiff's suit. They did not raise any issue impugning the Court sale or its confirmation, but urged that the suit was barred by Section 47 of the CPC, and that the only remedy of the decree-holder purchaser was to take delivery of possession under O. 21, R. 95, read with Article 181, Lim. Act, within three years, and not by a separate suit. The defendants also pleaded that in pursuance of an agreement arrived at between the parties on the date of the sale i.e, 30th May 1914, and recorded in Order No. 34 (Ex. 8), the decree-holder agreed to return the properties on payment of Rs. 20,000 and that they paid the said sum. The learned Subordinate Judge held that the payment was not proved, and according to the contract embodied in the order-sheet the purchased properties were to be returned on payment of Rs. 20,000, in case the judgment-debtors did not file any objection or put in a petition for setting aside the sale. But as a matter of fact there was an application for setting aside the sale and it was fought up to the High Court. Hence the Subordinate Judge overruled this plea. We are not concerned with this part of the case. The learned Subordinate Judge also overruled the plea that the suit is barred by Section 47 of the CPC, and this is the subject-matter of the reference.

5. The suit has been brought within twelve years but more than three years-from the date of the sale. No sale certificate was taken out after confirmation of the sale, nor was any step taken to obtain possession from the executing Court under O. 21, R. 95 of the Code. The plaintiff, who is the assignee and representative-in-interest of the decree-holder purchaser, bases his claim for possession upon the Court sale, alleging obstruction by the judgment-debtors as giving him a cause of action for the suit.

6. If by reason of the fact that the decree-holder is the purchaser the suit is barred by S. 47, his remedy to obtain possession will be curtailed from twelve years allowed by Article 138, Lim. Act, for such a suit to three years under Article 181 of the Act and will be further confined to an application under O. 21, R. 95.

7. The question is: Did the legislature intend to draw a distinction between a decree-holder purchaser and a third party purchaser, so as to curtail the right of the former as aforesaid.

8. The question is of vital importance and from its very nature has frequently arisen in one form or another and has given rise to considerable controversy in the High Courts in India. A large number of decisions covering a period of over half a century have been cited before us. It is neither necessary nor is it possible to discuss all of them. Suffice it to say that the arguments for and against have been lucidly and exhaustively brought out and dealt with in the various decisions and we cannot very much supplement them with new arguments whatever view we may take. We have simply to consider what view is in consonance with the statutory provisions and the principle underlying them.

9. Undoubtedly by his purchase at the execution sale the purchaser, whether he is the decree-holder or a third person, acquires under Section 65 read with O. 21, R. 92 of the CPC, an absolute title to the property purchased, and any obstruction by the judgment-debtor to his taking possession of the property will give rise to a cause of action and the civil Court will have jurisdiction to entertain his suit for recovery of possession. In the case of Valli Ammal v. The Corporation of Madras (1), at p. 43, it was observed that:

“when a right and an infringement thereof are alleged a cause of action is disclosed and unless there is a bar to the entertainment of such a suit the ordinary civil Courts are bound to entertain that claim.”

10. This is the common law rule and is recognized in Section 9 of the CPC, under which the Courts:

“have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

11. Article 138, Lim. Act, gives to a purchaser at a sale in execution of a decree a period of twelve years “from the date when the sale became absolute” for a suit for possession of immovable property sold:

“when the judgment-debtor was in possession at the date of the sale.”

12. It makes no distinction between a decree-holder purchaser and a third party purchaser.

13. Neither the Code of Civil Procedure nor the Limitation Act, nor any other enactment expressly bars a suit by the decree-holder purchaser to recover possession from a judgment-debtor when the latter obstructs his taking over possession. A suit to set aside an order under O. 21, R. 92, confirming a sale or setting aside a sale by any person against whom such order is made is expressly barred by Cl. (3) of that rule; but that has no application to the present case. Reference is made to S. 47 as barring such a suit.

14. Now S. 47 runs as follows:

“(1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.”

15. In the case of Antu v. Ghulam Muhammad Khan (2), it was held that the jurisdiction of a civil Court is not excluded unless the cognizance of the entire suit as brought is barred. S. 47 does not bar a suit for possession, but only bars the determination by a separate suit of questions raised or arising between the decree-holder and judgment-debtor which relate to the execution, discharge or satisfaction of the decree. Such questions if raised in the suit would be barred; but if no such question is raised S. 47 would not operate as a bar to the suit. A suit for possession of the property purchased at an execution sale, as in the present case, does not raise any question relating to the execution, discharge or satisfaction of the decree. It assumes rather than disputes the validity of the execution and the sale held therein and the satisfaction of the decree by the proceeds of the sale such a suit will not be barred by S. 47.

16. The argument in support of the contrary view is that R. 95, O. 21 in the chapter headed “execution of decrees and orders” provides for obtaining delivery of possession by the purchaser of a property purchased at an execution sale by an application to the executing Court, and that the decree is not satisfied by mere sale of the property and until possession of the property as a fruit of the execution is delivered to the purchaser. Hence it is said that a claim for possession relates to the execution, discharge or satisfaction of the decree within the meaning of the expression in S. 47 and a separate suit in respect thereof is barred by implication.

17. Now there is a distinction between the execution of a decree which directs the delivery of “any property specifically decreed” and the execution of a decree for sale under a mortgage or a simple money decree. In the former case the delivery of possession is an integral part of the execution of the decree (vide S. 51(a) and R. 11(j)(1), O. 21) and the decree is not satisfied until possession is delivered to the decree-holder under R. 35 or R. 36, O. 21, and as such it would relate to the execution, discharge and satisfaction of the decree under S. 47 and a separate suit for possession by the decree-holder would be barred: vide Sovani Jena v. Bhima Ray (3) and Sridhar Sirdar v. Jageshwar Singh Mahapatra (4).

18. In the latter case when the decree-holder applies under S. 51(b) read with R. 11(j)(ii), O. 21, for execution of the decree by sale of property, the Court directs the sale under O. 21, R. 64 in order to “satisfy the decree,” and pays the “proceeds of the sale” or a “sufficient portion thereof” to the party entitled under the decree.” Upon the sale of the property the decree is ipso facto satisfied by the sale proceeds. In case the decree-holder purchases with leave of the Court under Cl. (1), R. 72, the purchase money is set off against the amount due under the decree and Cl. (2) of the rule directs that

“the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.”

19. If a third party purchases the property the purchase money is deposited in Court under Rr. 84 and 85 and is paid to the decree-holder in satisfaction of his decree. The very object of the sale is “to satisfy the decree” by the “proceeds of such sale” as is expressly stated in R. 64. If the sale is not set aside under Rr. 89 to 91, it is confirmed and becomes absolute under R. 92. Upon sale of property and satisfaction of the decree as aforesaid the execution case is finally disposed of and satisfaction is entered up in the order sheet and in the register of suits, as was done in the present case: vide the order sheet (Ex. 8) and the register of suits (Ex. 16). Thus ends the execution of the decree.

20. The delivery of possession to the purchaser has nothing to do with the execution, discharge or satisfaction of the decree. After the sale is confirmed the property vests in him under S. 65 retrospectively from the time when the property is sold and he acquires a right to possession of the property. He had no existence as a purchaser until the execution had terminated with the sale, and until no had paid the full purchase money wherewith to satisfy the decree the property was liable to be resold: vide O. 21, R. 86. If the decree-holder purchases without the leave of the Court the property is liable to be resold. It is only when he purchases with the leave of the Court that the sale proceeds are set off against the decree and the decree is satisfied.

21. Thus the right of the purchaser arises only after the decree is satisfied. In asking for possession he does not ask for or raise any question relating to the satisfaction of the decree. His success or failure in obtaining possession does not affect in the least degree the execution, discharge or satisfaction of the decree. So long as the sale remains good the decree will be deemed to have been satisfied whether the purchaser gets possession of the property or not, or whether the decree-holder withdraws the sale proceeds from the Court or obtains a set off or not. The test is: suppose the decree-holder is the purchaser, and his application for possession is refused or he fails to obtain possession, can he execute his decree again upon the ground that it is not satisfied? The answer is obviously in the negative. So long as the sale stands good he cannot execute the decree and have the order of set off in satisfaction passed under Cl. (2), R. 72 set aside. A third party purchaser cannot obtain repayment of the purchase money so long as the sale is not set aside on the ground that he has not obtained delivery of possession. The failure to obtain possession would not invalidate the sale or nullify the satisfaction of the decree. The obtaining of possession will not give greater validity to the sale or the confirmation thereof than what it possessed. Therefore whereas the title of the purchaser arises from the sale of the property in execution of a decree, the delivery of possession does not relate to the execution, discharge or satisfaction of the decree. In order to obtain possession, whether by an application under O. 21, Rr. 95 or 96, or by a separate suit it is sufficient for him to show whether and what he has purchased at the Court sale. He need not raise any question relating to the execution, discharge or satisfaction of the decree in which the sale took place. If no question relating to the execution, discharge or satisfaction of the decree is raised, the right of the decree-holder purchaser to obtain possession by a suit against the judgment-debtor is not barred by S. 47.

22. Now, Rr. 95 and 96, O. 21, provide a summary remedy for the purchaser to obtain possession from the Court that sold the property to him, and the subsequent rules 97 to 103 deal with resistance offered to the delivery of possession to him. A private vendor is bound to give possession after the transaction of the sale is completed. Recognizing this principle the rules give to the Court that seized the property and sold it power to deliver possession of the property to the purchaser after the sale is completed and confirmed and a sale certificate is granted. Consequently these rules have been placed in the chapter relating to “execution of decrees and orders” for the sake of convenience and it by no means shows that delivery of possession should be regarded as raising a question relating to the execution, discharge or satisfaction of the decree under S. 47 of the Code, so as to bar a separate suit for possession. It is noticeable that in order to obtain possession by means of a summary procedure under the aforesaid rules, an application has to be made and an order obtained for delivery of possession. It is in pursuance of this fresh order that possession is delivered, and not in the course or continuation of the execution of the decree which terminated with the sale of the property; whereas, under R. 35 possession is delivered in the course of execution of the decree which directs the delivery of a specific property.

23. Again, for an application under Rr. 95 and 96 for delivery of possession a certificate of sale under R. 94 must have been granted as expressly stated in those rules.

24. Therefore if no sale certificate has been granted the purchaser will not get possession under the aforesaid rules. His right to possession however is not lost simply because no sale certificate was granted to him and he did not apply for possession under Rr. 95 and 96. The sale certificate does not create any title in the purchaser but is only evidence of it. The title accrues from the purchase and it becomes absolute on confirmation of the sale. Therefore no can enforce his right to possession by a suit without taking out a sale certificate and making an application for possession under the summary procedure laid down in Rr. 95 and 93. The mere fact that an enactment provides a summary remedy does not constitute a bar to a regular suit: Sharifa…(Original Defendant) v. Munekhan…(Original Plaintiff) .* (5).

25. So far back as in 1883 in the case of Jagarnath v. Baldeo (6) the point was concluded by a Full Bench decision of the Allahabad High Court consisting of the Chief Justice and four other Judges.

26. In that case no certificate of sale was obtained and no step was taken to obtain possession from the executive Court under the summary remedy provided by Sections 263 and 264 of the then CPC, (Act 8 of 1859) (now Rr. 95 and 96, O. 21). Eight years after the sale was confirmed the purchaser brought a suit for possession of the property which still continued to be in possession of the judgment-debtor. It was held that the suit was maintainable and it was not incumbent on the purchaser to produce a certificate of sale and he could prove his purchase aliunde and that the confirmation of the sale was sufficient to pass title to him of which sale certificate would merely be evidence. The dictum of Pontifex, J. in Doorga Narain Sen v. Baney Madhub Muzoomdar (7) was adopted. This decision was followed in the Calcutta High Court in the case of Iswar Prasad Gurgo v. Jai Narain Giri (8). The earliest decision of that Court to the contrary in Kristo Gobind Kur v. Gunga Pershad Surma (9) was overruled and the other decisions in Lolit Coomar Bose v. Ishan Chundra Chukerbutty (10); Seru Mohun Bania v. Bhagohan Din Pandey (11) and Krishna Lal Dutt v. Radha Kishun Surhhel (12) were either distinguished or explained.

27. The view taken by the Allahabad High Court was re-affirmed in the case of Kishori Mohan Roy Choudhury v. Chandra Nath Pal (13) (Sir W. Comer Petheram, C.J and Ghose, J.). In that case upon a consideration of Section 318 now O. 21, R. 95, Section 11 (now Section 9) of the CPC, and Article 138 of the Lim. Act, it was held that the legislature did not contemplate the barring of a suit to obtain possession of the property based on the title derived from the purchase in execution of a decree without having recourse to obtain possession from the executing Court by an application under S. 318 of the Code. This view has been adopted in the other High Court.

28. Therefore it is now settled that the summary procedure for obtaining possession under O. 21, Rr. 95 and 96 does not bar a suit by a purchaser to obtain possession of the property. The two remedies are concurrent. The purchaser can at his option avail of the one or the other.

29. It is however said that the two remedies are available only to a third party purchaser, but when the purchaser happens to be the decree-holder himself, his, remedy to obtain possession is confined to an application to the executing Court under O. 21, R. 95 or R. 96 as the case may be; and he cannot maintain a separate suit for possession. This will have the effect, as already observed, of curtailing his right to obtain possession from 12 years under Article 138 to three years under Article 181, Limitation Act. The reason suggested for drawing a distinction between him and a third party purchaser is that the latter is not expected to go behind the decree, whereas the decree-holder, who obtained the decree, knows all that need be known about the property and in his case there is no hardship in confining his remedy to a proceeding in execution. To my mind, this is no ground for curtailing his right to obtain possession by a suit unless the right is curtailed by the statute.

30. The solution of the question depends upon the intention of the legislature as it is expressed or is necessarily implied in the Code of Civil Procedure and the Limitation Act. The law of limitation is a law relating to procedure: Ruckmaboye v. Lulloobhoy Mottichand (14); so is the Code of Civil Procedure They are in parimateria, and according to the dictum oft Lord Mansfield in Rex v. Loxdale (15) they are to be “taken and construed to gather as one system as explanatory of each other,” in order to determine whether it was intended by the legislature to draw a distinction between a decree-holder purchaser and a third party purchaser and to curtail the right of the former in the matter of obtaining possession of the property purchased by him in execution of his decree. Article 138, which gives the right to obtain possession by a suit within 12 years of a property purchased at a Court sale, does not make any distinction. In it the general word “purchaser” has been used. In O. 21 of the CPC wherever it is intended to make a distinction between a decree-holder-purchaser and a third party purchaser, it has been expressly stated: vide Rr. 72 and 84, Cl. (2) which apply to a decree-holder purchaser and Rr. 84(1), 85 and 86 which apply to a third party purchaser. Rr. 91, 94, 95 and 96 make no such distinction, and we are concerned with the latter two rules. They relate to the right to obtain possession of the property purchased promptly and by a summary procedure. The order passed under those rules is not appealable. By making the order as one relating to the execution, discharge or satisfaction of the decree the decree-holder purchaser obtains a right of appeal as it would then come within the purview of S. 47, under which it will have the force of a decree within the definition of the term in S. 2(2). A third party purchaser will not have any right of appeal as he cannot take advantage of S. 47 not being a party to the suit, but he will have a right of enforcing his claim for possession by a suit. Such an important result could not have been left in doubt and uncertainty. If the legislature had intended to bar a suit by a decree-holder purchaser as distinguished from a third party purchaser, it would have expressly mentioned it either in Article 138, Limitation Act or in the rules in O. 21 of the CPC. This has not been done. On the other hand, reading Article 138 together with S. 9, O. 21 and Rr. 95 and 96 it is clear that the legislature did not intend to curtail the right of the decree-holder purchaser to obtain possession of the property by a suit within 12 years. They are not ambiguous and consequently there is no question discovering the intention of the legislature by implication. S. 47 does not bar such a suit by a decree-holder purchaser expressly, but it is said that it does so by implication. There is no room for such a contention. The clear words in Article 138 cannot be controlled or limited in any way by such an implication. It gives a larger right to the decree-holder purchaser to enforce his right to obtain possession by a suit and it cannot be controlled by mere implication in Section 47 of the CPC. The principle underlying the decision of their Lordships of the Judicial Committee in Phoolbas Koonwar v. Lalla Jogeshur Sahoy (16) and of the Bombay High Court in Chunilal Jethabhai v. Barot Dahyaphai Amulakh (17) though under different circumstances would apply.

31. It is urged that the rights of decree-holder purchaser and those of a third party purchaser are not invariably the same and reference is made to the Privy Council decision in Zainulabdin Khan v. Muhammad Asghar Ali Khan (18) where at an execution sale both the decree-holder and a stranger purchased properties and the decree in execution of which the sales had taken place was set aside. In a suit brought by the judgment-debtor for restoration of the property sold it was held that the purchase by the stranger was not affected, whereas that by the decree-holder was affected and the judgment-debtor was entitled to the property purchased by the decree-holder being restored and not that purchased by the stranger in which case he had to content himself with the value of the property fetched at the auction sale. This is on the ground of equity, for the decree-holder would be entitled to execute the decree afresh, the sale having been set aside, whereas a third party purchaser has no such remedy. He bid at the sale believing that the decree was all right. Here we are not concerned with such an equity. If any equity arises it is in favour of the decree-holder having a right to enforce his claim for possession by a suit just as a stranger purchaser, when the judgment-debtor having ceased to have any interest in the property still continues to be in possession. The Privy Council case is however important in that it shows that a suit by a judgment-debtor for restoration of a property sold in execution of a decree against a decree-holder is maintainable on the ground that it does not necessarily raise a question relating to the execution, discharge or satisfaction of the decree. On the same principle a suit by a decree-holder purchaser against the judgment-debtor for possession of the property purchased in execution of the decree does not necessarily raise a question relating to the execution, discharge or satisfaction of the decree and is maintainable.

32. No doubt, the decree-holder cannot purchase without express permission of the Court obtained under O. 21, R. 72; but if he purchases with such leave his disability ceases and he is placed in the same position as any other purchaser. Lord Watson in the case of Mahabir Prasad Singh v. Macnaghten (19) held that the mortgagee purchasing the property with the leave of the Court cannot be held to be a trustee of the mortgagor on the ground stated by him

“that leave to bid puts an end to the dis ability of the mortgagee and puts him in the same position as an independent purchaser.”

33. Therefore, although the decree-holder was a party to the suit and by his purchase does not cease to be so, he is pub in the same position as any third party purchaser. If a third party purchaser has a double remedy: (1) a summary one under O. 21, R. 95 and (2), a right under the common law as set forth in Section 9 of the Code read with Article 138 of the Limitation Act, to bring a suit to recover possession of the property without having recourse to or having failed to get delivery of possession under a summary procedure, the decree-holder purchaser has also the same right. If delivery of possession is a part of the execution of the decree, then a third party purchaser will also be confined to taking possession under O. 21, R. 95, as was the view taken in Kristo Gobind Kur v. Gunga Pershad Surma ; but as already shown this view does not now hold good and a third party purchaser has a right to bring a suit within 12 years.

34. The Privy Council decision in Prosunno Kumar Sanyal v. Bali Das Sanyal (20), Ganapathy Mudaliar v. Krishnamachariar (21), Ramabhadra Naidu v. Kadiriyasami Naicker (22), and Seth Motilal Hirabhai v. Bai Mani (23) illustrate the cases which come under S. 47 of the decree.

35. In the first case, Prosunna Kumar Sanyal v. Kali Das Sanyal , some of the judgment-debtors brought a suit to set aside the sale on the ground that the decree-holder had sold their share in the property in contravention of an agreement whereby he received the proportionate amount of the debt due from the plaintiffs under the decree and agreed to exempt their share from sale. Their Lordships of the Judicial Committee held that the suit was barred by S. 244 (now S. 47) of the Code as the question raised in the suit related to the execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed and the fact that the purchaser who was not a party to the suit is interested in the result is no bar to the application of the section.

36. In the second case, Ganpathy Mudaliar v. Krishnamachariar , one of the judgment-debtors brought a suit for redemption of the mortgage upon the ground that his right was not lost inasmuch as the decree was not made in accordance with the provisions in the Transfer of Property Act. Their Lordships held that the question could and should have been raised before the sale was confirmed and the suit was therefore barred by S. 47.

37. In the third case Ramabhadra Naidu v. Kadiriyasami Naicker the judgment-debtor brought a suit that the purchase of the decree-holder at the auction-sale should be limited to the property described in the mortgage bond which did not cover all the lands purchased possession whereof was delivered to the decree-holder. Their Lordships held that the question raised by the judgment-debtor depended entirely upon the determination of what was actually purchased and that question could not be raised by a separate suit after the sale was confirmed and the sale certificate was issued, as there was full opportunity for challenge of all proceedings in the execution of the mortgage decree at the time and except in clear cases a purchaser ought not to be harassed in his-possession by disputes arising years after his purchase.

38. In the fourth case Seth Motilal Hirabhai v. Bai Mani a decree for redemption of certain pledged shares “together with all issues thereof” was obtained. The decree-holder applied for execution of the decree by transferring to him certain newly purchased shares which he claimed to be accession to the pledged shares.

39. It was held that the question to be determined depended upon considerations which necessarily were connected with the original case and was therefore a matter which the executing Court was fully competent to go into under S. 47 of the Code.

40. A question may be raised as to the nature of possession, namely, whether direct or khas possession under R. 95 or indirect or symbolical possession under R. 96 to which the purchaser is entitled and this would be a question relating to the execution of the decree, as it involves the question, what was sold in execution. It was a question of this nature that was before the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar (24).

41. Now a question might arise whether the property of which possession is sought by the decree-holder and which is in possession of the judgment-debtor was actually sold or not. Such a question would be one relating to the execution of the decree and as such would be barred by S. 47 of the Code. Instances might be multiplied where questions raised in the suit have been held to be barred by S. 47 as relating to the execution, discharge or satisfaction of the decree. The present is not a suit of the nature as that, in the cases referred to above. It is a simple suit for possession based on the title derived from the purchase at the Court sale where no question relating to the execution, discharge or satisfaction, of the decree has been raised. The sale or the confirmation thereof has not been challenged. Such a suit is not barred by S. 47. The majority of the High Courts in India have taken the same view.

42. The leading decision is that of a Full Bench of the Allahabad High Court in 1908 by a majority of three to two Judges in Bhagwati v. Banwari Lal (25). It overruled the contrary decisions of that Court in Moti Lal v. Makund Singh (26), Kesri Narain v. Abdul Hasan (27) and Sheo Narain v. Nur Muhammad (28). That decision has since been acted upon in that Court: vide Budhu Missir v. Bhagirathi Kuar (29), Mohsion Raza Khan v. Haidar Bakhsh (30) and Nusrat Ali v. Sakina Begum (31). The Full Bench decision of the Allahabad High Court has been adopted by the Lahore High Court in Chotha Ram v. Mt. Karmon Bai (32). The Bombay High Court in a Full Bench decision in Hargovind Fulchand v. Bhudar Raoji (33) followed the Allahabad decision and overruled an earlier decision to the contrary of their own Court in Sadashiv Mahadu Dhole v. Narain Vithal (34). A Full Bench of the Oudh Chief Court in Gaya Baksh Singh v. Kuar Rajendra Bahadur Singh (35) has also followed suit and adopted the Full Bench decision of the Allahabad High Court.

43. The Madras High Court has taken a contrary view. It is however noticeable that in these later two decisions: Kattayat v. Raman Menon (36) and Sanahu Taranganar v. Hussain Sahib (37) the correctness of the earlier decisions has been seriously questioned. In the former case the learned Judges observed as follows:

“If the question were not already settled by more decisions than one of this Court and of the Calautta High Court, we should entertain considerable doubt as to whether proceedings taken by a purchaser to obtain possession of the property purchased could be regarded as relating to the execution, discharge or satisfaction of the decree within the meaning of Section 244 of the CPC, when such proceedings could not possibly affect the execution, discharge or satisfaction of the decree.”

44. Thus the contrary view is maintained in the Madras High Court on the ground of a settled cursus curiae of that Court, and not as being in accordance with the statutory provisions in the Code of Civil Procedure and the Limitation Act for the purpose of answering the question referred to us.

45. The question has had a chequered course in the Calcutta High Court. One of the earliest decisions in Kristo Gobind Kur v. Ganga Pershad Surma went so far as to hold that the plaintiff, who was the auction purchaser, should not be entitled to bring a fresh suit for possession, as he might have obtained possession in execution proceedings. The decision in that case was doubted and was followed with Borne hesitation by Sir Richard Garth, C.J and Morris, J., in Lolit Goomar Bose v. Ishan Chandra, Chuckerbutty . It was distinguished in Seru Mohan Bania v. Bhagoban Din Pandey and in Krishna Lal Dutt v. Radha Kishun Surkhel .

46. In 1885 in the case of Iswar Pershad Gurgo v. Jai Narain Giri the Court held that there was no reason in law why a suit for possession should not be maintained by a purchaser at an auction sale simply because the summary remedy provided by S. 318, (O. 21, R. 95) was no longer available and the Full Bench decision of the Allahabad High Court in Jagannath v. Baldeo , was followed. This view was re-affirmed in the case of Kishori Mohan Roy Chaudhuri v. Chandra Nath Pal : vide also the case of Bhimal Das v. Mt. Ganesh Kuar (38). (Trevelyan and Stevens, JJ.) where it was held that an order passed under S. 318 (now O. 21, R. 95) of the Code is not appealable and no right of appeal is given by S. 588 (now O. 43) from such an order and the order cannot be said to be one under S. 244 (now S. 47) of the Code. In that case the decree-holder was the purchaser in execution of his own decree and his application for delivery of possession under S. 318 was refused by the Courts below and it was held that no appeal lay, implying that the question did not relate to the execution, discharge or satisfaction of the decree under S. 47 and hence a separate suit for recovery of possession by a decree-holder purchaser is not barred. But only two years afterwards in the case of Madhusadan Das v. Gobinda Pria Chowdhurani (39) the Court took a contrary view. Again an opposite view was taken in the following cases: Mohomed Mosrof v. Hobil Mia (40) and Umesh Chandra Dass v. Shib Narain Mandal (41).

47. In this state of oscillation and conflict of views came the case of Sasi Bhusan Mookerjee v. Radha Nath Bose (42). In that case the decree-holder himself purchased the property in execution of a mortgage decree. Nine years after the confirmation of the sale his son as his legal representative obtained a sale certificate, and conveyed the property to the petitioner who obtained delivery of possession under O. 21, R. 95. Their Lordships held that an order under O. 21, R. 95 does not decide any question relating to the execution, discharge or satisfaction of the decree and hence is not appealable. It was observed that the mortgage decree having been executed and sale taken place and become absolute the decree had been satisfied and the application for execution disposed of, and consequently the execution and satisfaction of the decree would not be affected in the remotest degree by the fate of the application by the purchaser for delivery of possession of the property sold to him. Their Lordships further held that the decree-holder, who purchases at a sale held in execution his decree, the property belonging to his judgment-debtor, is in the same position as would be any other purchaser. He could sue the judgment-debtor for a declaration of title and recovery of possession at any time within 12 years when the sale was confirmed, without having a sale certificate or any step to obtain possession from the executing Court, and the judgment-debtor having lost his interest in the property had no right to continue to be in possession and would have no answer to the claim of the decree-holder to possession of the property. This view was followed in Aduram Haidar v. Nakuleshwar Rai Chowdhury (43), Lakhi Pria Guha v. Nand Kumar Basu (44) and Panchanan Pal v. Sukhamoy Santra (45) (Sir Ernest Fletcher and Walmsley, JJ.) where it was held that an auction-purchaser, even when he is the decree-holder himself, is not bound under O. 21, R. 95 of the CPC, to apply for recovery of possession of the property purchased by him and a suit for possession would not be barred by S. 47. In dealing with the question the learned Judges say:

“A convenient summary of the decisions of this Court is given in the judgment of the Full Bench in the case of Abdul Gani v. Raja Ram (46).”

48. This is a decision of our Court.

49. The Patna High Court was established in March 1916. Within a few months of its establishment on account of there being much conflict of judicial opinion a Full Bench was constituted to settle the question whether an appeal lies from an order under R. 95, O. 21 of the CPC. The learned Chief Justice observed as follows:

“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.”

50. She immediate question for determination in that case was whether an appeal has from an order passed under R. 95, O. 21 of the Code. Under O. 43 of the Code no appeal lies from such an order. An appeal would lie only if the order passed came within the purview of S. 47 by reason of an order under that section being a decree within the definition of the term in S. 2, Cl. (2), of the Code. The Court unanimously decided that the order relating to possession of the property purchased by the decree-holder did not raise any question relating to the execution, discharge or satisfaction of the decree within the meaning of S. 244 of the Code of 1882 or S. 47 of the present Code, and hence no appeal lies. The decision implies that a separate suit for possession by a decree-holder purchaser is not barred.

51. The question directly arose in the case of Sridhar Sardar v. Jageshwar Singh Mahapatra (Dawson Miller, C.J, and myself). In that case no step was taken to obtain possession under O. 21, R. 95, and a suit was brought to obtain possession by the decree-holder against the judgment-debtors who were still in possession seven years after the confirmation of sale. It was held that the suit was not barred by S. 47. The case is similar to the present one.

52. Similar was the view taken by this Court in Dukhu Mandal v. Gopinath Biswas (47), Jadab Chandra Poddar v. Rameshwar Marwari (48) (Wort and James, JJ.), Dhaninder Das… v. Harihar Prasad Singh…. (49) (Roe and Imam, JJ.), Triloke Nath Jha v. Bansuman Jha (50) (Adami and Das, JJ.), Lakshmi Narain Singh v. Rebati Debya (51), and Malik Abdul Mokit v. Abdul Rashid (52) (Ross and Chatterjee, JJ).

53. Thus the Full Bench decision in Abdul Gani v. Rajaram has always been followed in this Court. The only judgment inconsistent with it is the judgment of Mullick, J. in Askaran Baid v. Raghunath Prasad* (53) where there are observations, not essential to the decision. It does not appear that the Full Bench decision of this Court was cited or considered in that case. My learned brother Ross, J. agreed in that case to the order passed and not to the reasons for the order and now he expressly agrees with the Full Bench and other decisions of this Court.

54. The question is one of procedure and it was settled for this province just a few months after the establishment of this High Court by that decision.

55. Even before the decision of this Court that was the rule of procedure that governed this province by virtue of the majority of the decisions of the Calcutta High Court since 1883 and more particularly that of Mookerjee and Beachcroft, JJ. in the case of Sasi Bhusan Mookerjee v. Radha Nath Bose which this Court followed.

56. It may therefore be said that this Court has re-affirmed and followed the procedure which has been in vogue in this province for about half a century and it must reasonably be supposed to have affected the conduct of a large portion of the litigant public in matters relating to rights of property and the Court must hesitate to overrule its decisions unless they are manifestly erroneous and mischievous, as observed in the case of Kedar Nath Hazra v. Mahindra Chandra Nandi (54). In overruling our previous decisions manifest mischief and injustice would be dona by disturbing countless titles by reducing the period of limitation for a suit for possession by a decree-holder purchaser from twelve years under Article 138 to three years under Article 181, Lim Act. On the other hand far from being erroneous it has been shown in the case of Sridar Sirdar v. Jageshwar Singh Mahapatra as well as in this judgment that the view taken by this Court is based upon a true interpretation of the provisions in the Code of Civil Procedure and the Limitation Act. The Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar subsequent to the decision of the Full Bench of this Court indirectly throws some doubt on the question. The question which we have to decide in this reference did not directly arise in that case. The question in that case was what kind of possession, whether khas or direct possession under O. 21, R. 95 or an indirect or symbolical possession through tenants in actual possession under R. 96, the decree-holder purchaser was entitled to. This depended upon what was purchased by the decree-holder at the auction sale and it was held that the order passed by the executing Court related to the execution, discharge or satisfaction of the decree under S. 47 and amounted to a decree and was appealable. The point directly arose in the Calcutta High Court in Panchanan Pal v. Suhhamoy Santra already referred to and it was held following the Full Bench decision of our Court that an auction-purchaser even when he is the decree-holder himself is not bound under O. 21, R. 95 of the CPC to apply for recovery of possession of the property purchased and the question does not come under S. 47 of the Code. He may maintain a separate suit for possession. This is a direct answer to the question before us.

57. Barring the Full Bench decision referred to above a larger number of decisions of the Calcutta High Court support the view taken by this Court. It is also supported by a majority of the recent decisions of the other High Courts in India namely the High Courts of Allahabad, Bombay and Lahore and the Chief Court of Oudh. The Madras High Court maintains a contrary view on the ground of a settled cursus curiae.

58. The present case is on all fours with the Full Bench cases of the Allahabad and the Bombay High Courts and a Division Bench case of the Punjab Chief Court in Chotta Ram v. Mt. Karmon Bai . In all those cases the decree-holder purchased the property in execution of his decree on mortgage or simple money decree and he or his assignee brought a suit for possession long after three years had expired from the confirmation of sale but within twelve years without taking any step or having failed to obtain possession under O. 21, R. 95. The case is similar to the one in Sasi Bhusan Mookerjee v. Radha Nath Bose , where the possession delivered to the assignee of the decree-holder purchaser long after the application for a sale certificate and for delivery of possession was barred was upheld on the ground that he could maintain a suit for possession within twelve years.

59. In all these cases it was held: (1) that the rights of decree-holder purchasing the property in execution of a mortgage or a simple money decree are the same as those of a third party purchaser; (2) that he like a third party purchaser has a double remedy to obtain possession by an application to the executing Court under O. 21, Rr. 95 or R. 96 as the case may be and by a separate suit for possession the two remedies being concurrent, he can bring a suit without having recourse to the summary remedy; (3) that a claim for recovery of possession does not by itself raise a question relating to the execution, discharge or satisfaction of the decree; (4) that the execution of the decree terminates with the sale and confirmation thereof and the decree is satisfied by the sale proceeds; the execution or satisfaction of the decree is not affected in the remotest degree whether the purchaser, be he the decree-holder or a third party, succeeds in obtaining possession of the property or not and (5) that when the decree-holder brings a suit for possession basing it upon the title derived from the Court sale, he does not dispute or raise any question regarding the execution or satisfaction of the decree, but rather assumes and relies upon the validity of the execution, the sale and the satisfaction of the decree. In such a casa the execution terminates with the sale of property, and as such he cannot raise any question relating to the execution, discharge or satisfaction of the decree within the purview of S. 47 of the Code in the widest sense of the term ‘relating to’ as meaning ‘connected with’. Hence a simple suit for possession by the decree-holder purchaser will not be barred by the section.

60. Thus relying upon these authorities and the true construction of the relevant provisions in the Code of Civil Procedure and the Limitation Act, I would answer the first part of the question, which is the main question, in the negative, namely, that a suit for possession by a decree-holder purchaser is not barred by S. 47 of the Code. As to the question whether the decree-holder, who becomes a purchaser of the property sold in execution of his own decree, ceases as such to be a party to the suit, I would answer that, although he was a party to the suits in which the decree was obtained, when he purchases at the Court sale with the leave of the Court under O. 21, R. 72, he acquires the same right which any other purchaser does, namely, to obtain possession of the property either by the summary remedy provided for in Rr. 95 and 96, O. 21, or by a separate suit at his option. As to the third question: whether the question relating to delivery of possession of the property purchased by the decree-holder auction-purchaser is a question relating to the execution, discharge or satisfaction of the decree, my answer is in the negative.

Courtney-Terrell, C.J:— I agree.

Ross, J.:— It may be doubted whether the question which has been referred to the Full Bench in the abstract form in which it is stated admits of a simple answer; and I shall treat the question with reference to the facts of this particular case.

61. The vendor of the plaintiff in the present suit had purchased property belonging to the predecessors of the defendants at a sale held in execution of his own mortgage decree. The suit was for possession of the property so purchased. It was brought within 12 years, but more than three years, from the date of sale. The purchaser had not taken out a sale certificate after confirmation of the sale and had taken no steps within three years to obtain possession. The question is whether in these circumstances the present suit is barred by the provisions of Section 47 of the CPC.

62. Article 138 of the Lim. Act, gives to a purchaser at a sale in execution of a decree a period of 12 years from the date when the sale becomes absolute for a suit for possession of immovable property sold when the judgment-debtor was in possession at the date of sale and unless a distinction is to be drawn between a decree-holder purchaser and a third party-purchaser, it would appear that the legislature did not intend to impose any bar to such a suit. The Limitation Act being a procedural statute is to be read along with the Code. Now while it is true that the rights of a decree holder purchaser and those of a third party purchaser are not invariably the same, no express distinction as to their right of suit appears anywhere in the Coda or in the Limitation Act. If the decree in execution of which the sale takes place is set aside, the purchase by a stranger is not thereby affected, while a purchase by the decree holder necessarily falls; Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan . This distinction however does not in itself involve any difference in the rights of purchasers in the matter of a suit for possession. Under Section 9 of the CPC, such a suit is maintainable unless it is a suit of which the cognizance is either expressly or impliedly barred. A suit to set aside an order under O. 21, R. 92 confirming a sale or setting aside a sale by any person against whom such order is made is expressly barred by Cl. (3) of that rule; but that has no application to the present case. There is no other express bar. The only section which could be read as barring the suit by implication is S. 47, and that would operate as a bar only if the question raised in the suit is a question arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree. It may, I think, be taken as involved in the decisions of the Judicial Committee in Ganapathy Mudaliar v. Krishnamachariar and Ramabhadra Naidu v. Kadiriyasami Naicker , that a decree bolder by purchasing in execution with the leave of the Court does not cease to be a party; and the opposite view cannot in my opinion be inferred from the language used by Lord Watson in Mahabir Persad Singh v. Macnaghten where his Lordship said:

“leave to bid puts an end to the disability of the mortgagee, and puts him in the same position as any independent purchaser.”

63. His Lordship was there dealing with the question whether a mortgagee decree-holder purchasing without leave was a trustee for the mortgagor and was distinguishing from such a case the case of a mortgagee purchasing with leave who was held by reason of that leave, to be in the same position as an independent purchaser. That does not involve the conclusion that by purchasing in execution he ceases to be a party to the suit.

64. The question whether S. 47 is a bar would therefore seem to depend upon the nature of the question arising in the suit, that is to say, whether or not it is a question relating to the execution, discharge or satisfaction of the decree. A question of that nature manifestly ought to be decided by the executing Court. Can it be said that the question whether the present plaintiff is entitled to recover possession of this property is a question relating to the execution of the mortgage decree? I am unable to see how a bare question of the right to possession can be of that nature. O. 21, R. 95, lays down the procedure for delivery of possession to an execution purchaser when the immovable property sold is in the occupation of the judgment-debtor or of some person on his behalf or claiming under a title created by him subsequently to the attachment and where a sale certificate has been granted under R. 94. Now it may be that a question might arise whether the property of which possession is sought and which is in possession of the judgment-debtor was actually sold or not, and this would be a question relating to the execution of the decree. It was a question of this nature that was before the Judicial Committee in Ramabhadra Naidu v. Kadiriyasami Naicker ; or a question may be raised as to the nature of the possession to which the purchaser is entitled, viz., possession under R. 95 or possession under R. 96, and this would also be a question relating to the execution of the decree, because it involves the question: What was sold in execution?. It was a question of this nature that was before the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar , and it was expressly on this ground that the case was held to fall within S. 47. If the question is whether the person in actual occupation is there in the right of the judgment-debtor or not, this is obviously not a question arising between the parties to the suit and a right of suit is expressly reserved by R. 103. But if no such questions as these arise, but a bare question as to the right to possession of land admittedly sold in execution of a decree, I can see no ground upon which such a question can be said to relate to the execution of the decree. The scope or efficacy of the execution is not in issue.

65. As was pointed out by Mookerjee, J., in Sasi Bhusan Mookerjee v. Radha Nath Bose , the execution of the decree is not affected whether possession is obtained by the purchaser or not. In Bhagwati v. Banwari Lal the majority of the Judges of the Full Bench held that a suit for possession was not barred by S. 244 of the old Code (S. 47) in circumstances almost precisely similar to those of the present case where the question was a question of the right to possession uncomplicated by any other-considerations. The only distinction between that case and the present was that there the decree-holder purchaser, had obtained a sale certificate. In the present case no sale certificate was taken and therefore no application could have-been made under R. 95; but it is settled law that a sale certificate is nit necessary to complete the title of the purchaser. The same view was taken by the Full Bench of the Bombay High Court in Hargovind Fulchand v. Bhudar Raoji , a case precisely similar to the present where also the question was a pure question of the right to possession. Macleod, C.J, said:

“In my opinion the decree-holder purchaser does not seek to get possession in execution of his decree but by virtue of his being declared the purchaser at the auction sale.”

66. Shah, J., said:

“Even when S. 47 is liberally interpreted it is difficult to include within its scope a claim based on the title of the auction-purchaser, which is distinct from the execution, satisfaction or discharge of the decree. In the present case there is no question as to the validity of the Court sale. Where the validity of the sale is questioned, it may be said that the questions arising in the suit may relate to the execution, discharge or satisfaction of the decree, in execution whereof the sale is held. In the present case the decree-holder in execution of the money decree in his favour purchased the right, title and interest of his judgment-debtor and his claim to recover possession on the strength of that title would be outside the scope of Section 47 of the CPC.

67. The point was put in the same way by Griffin, J., in Bhagwati v. Banwari Lal :

“On the facts found in the present case the; decree-holder auction purchaser might have applied to be placed in possession, under the provisions of Section 318 and Section 319 of the CPC. If he did not so apply or if his application was unsuccessful, he could, in my opinion, fall back upon his title and sue for possession. That title he derived not from the decree, which, in so far as it was a decree for sale, had expended its force, but from his purchase. Under Article 138, Sch. 2, Limitation Act, he could bring his suit within twelve years from the date of the sale. Neither in the Code of Civil Procedure nor in the Limitation Act is there any distinction drawn between a decree-holder auction-purchaser and a stranger auction-purchaser.”

68. Further, this view is involved in the decision of the Full Bench of this Court in Haji Abdul Gani v. Raja Ram , where it was held that no appeal lay from an order under R. 95, O. 21; in other words, an application for delivery of possession did not fall within S. 47, i.e the question of delivery of possession is not a question relating to the execution, discharge or satisfaction of the decree. That decision has never been questioned. The only judgment inconsistent with it is the judgment of Mullick, J., in Askaran Baid v. Raghunath Prasad* , where a different view not essential to the decision was suggested, but the decision of the Full Bench was not cited in the argument of that case. Even if the decision were doubtful (and in my opinion it is not) there is no clear ground for disturbing it and thus disturbing countless titles. The question is one of procedure and the procedure has been settled for this province from the first year of this High Court by that decision; and, in my opinion, that decision ought to be followed.

69. I would therefore answer the question referred to the Full Bench, with reference to the facts of the present case, in the negative.

Wort, J.:— The question submitted to this Court is whether a suit instituted by the decree-holder purchaser or his representative-in-interest for recovery of possession of the property purchased in execution of the decree is barred by the provision of Section 47 of the CPC. The question is put in other words in this form:

“Whether a decree-holder, who becomes a purchaser of the property sold in execution of his own decree, ceases as such to be a party to the suit, and whether the question relating to the delivery of possession of the property purchased by the decree-holder auction-purchaser is a question relating to the execution, discharge or satisfaction of the decree?”

70. The second form in which the question is put rests on two matters, the first being whether the decree-holder purchaser by reason of the fact that he has purchased in execution of his own decree ceases to be a party to the suit. It would appear from the form of the question that the learned Judges, who submitted the case, were under the impression that a third party purchaser would not be a party to the suit within the meaning of Section 47 of the CPC, and upon that basis a doubt arose as to whether a decree-holder, who purchased, was put into the same position as a third party. To assume that is to take, what I may describe, an extraordinary view of the case which, as I understand the authorities, is not warranted: in other words, if it can be shown that a third party, who purchaser in execution of a decree, is in the same position as a party to the suit it would naturally follow that a decree-holder, who becomes a purchaser, does not lose his identity as a party to the suit by the mere fact of his purchase. There are a number of authorities in the Courts of India which would make it appear that a third party, who purchased, is not a party to the suit. But this matter has now been put beyond dispute by the Judicial Committee of the Privy Council in the case of Ganapathy Mudaliar v. Krishnamachariar . Their Lordships of the Judicial Committee of the Privy Council expressed their view on this matter in these words:

“This Board decided in Prosunno Kumar Sanyal v. Kali Das Sanyal that S. 24 had been rightly held in India to apply in a case in which the question raised concerned the auction-purchaser at an auction sale as well as the parties to the suit.”

71. There are other decisions of the Courts in India which can be read as deciding that a third party is not a party to the suit but the case to which I have just referred puts this matter beyond controversy. We have now therefore only to decide the main question in this case. Perhaps it may be necessary to state two or three facts in this case in order to understand how the other and main question arises. The plaintiff got title to the property by purchasing it from the decree-holder purchaser in execution of his mortgage decree. No sale certificate had been issued and the present plaintiff waited for a period just within 12 years and then brought the suit for possession. The question put to this Bench involves the question of whether this action is barred by reason of the provisions of Section 47 of the CPC, A very large number of authorities have been quoted both by Mr. Mukherji, who appears on behalf of the appellant, and Mr. Sushil Madhav Mullick, who appears on behalf of the respondent, and each, in his turn, endeavours to differentiate those cases which would appear to be against the contention he is respectively advancing.

72. The reason for referring this case, as pointed out by the learned Judges referring the matter, was this. In the case of Haji Abdul Gani v. Raja Ram , which was a Full Bench decision of this Court, it was decided that in an application for possession under O. 21, R. 95, no appeal lay to this Court as the matter did not relate to the execution, discharge or satisfaction of the decree. That judgment was based on what was described by Sir Edward Chamier as the cursus curiae of the Calcutta High Court on this matter. However, in a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Podclar it was decided that a decree-holder auction purchaser applying for possession under O. 21, R. 95, came within the provisions of Section 47 of the CPC, as it was a question arising between the parties and was a proceeding, relating to the execution, discharge or satisfaction of the decree.

73. The view of the learned Judges, referring this case, was that the cursus curiae of the Calcutta High Court upon which the decision of this Court was based had been pronounced not to be the law; the learned Judges, who referred this case, had doubts therefore of the decision in Abdul Ghani's case . I shall presently refer to the decision of the Full Bench of the Calcutta High Court as the learned advocate on behalf of the respondent contends that it can be distinguished. The authorities relating to this matter, in so far as they are directly in point, can be placed in two categories but the principle underlying both classes is the same. The first is whether an appeal lay to the High Court or not from an order under O. 21, R. 95, the second class arising out of actions in which the purchaser in execution had brought an action for possession. There have been a number of Full Bench decisions of the various High Courts in India relating to these matters and reference will be made to those hereafter.

74. The first class refers to the point whether an appeal would lie or not from an order under O. 21, R. 95. The first decision which is in favour of the respondent is Bhimal Das v. Mt. Ganesh Koer where it was decided that a decree-holder purchaser, applying for possession under Section 318 of the CPC, of that time, had no right of appeal as it was not a matter relating to execution, discharge or satisfaction of the decree within. Section 244 of the CPC, which is equivalent to Section 47 of the present CPC. The basis of the decision was that, by the sale the execution was complete and the decree became satisfied to the extent of the purchase money paid therefor. In Jagarnath Marwari v. Kartik Nath Pandey (55) the decision was to the same effect, and in the case of Hari Charan Dutta v. Mohomohan Nandi (56) it was held that an appeal lay, but there, it must be noticed, the application was by the judgment-debtor and the question arose by reason of an objection by him in the application made by the decree-holder purchaser for possession under O. 21, R. 95.

75. It is true that from the judgment of Coxe, J., who delivered the principal judgment of the Court, it appears that the main discussion related to whether an application under O. 21, R. 95, did or did not come within the scope of S. 47. But it must be observed that a very considerable difference exists having regard to the fact that the question was whether an appeal lay from a refusal of the Subordinate Judge to recognize an agreement which the judgment-debtor alleged existed between him and the decree-holder urging that it came within the scope of O. 21, R. 2. Therefore in substance, the question was not whether an application to obtain possession came within S. 47, but whether the matter which was raised by the judgment-debtor related to the execution, discharge or satisfaction of the decree. In so far as therefore the point decided is relevant to the question we have to determine, it does not appear that it is against the view taken by the Full Bench of this Court. The Calcutta High Court again held in Sasi Bhusan Mookerjee v. Radha Nath Bose that in an application for a certificate of sale and in an application for delivery of possession, the execution ended with the confirmation of sale, and therefore the matter did not come within S. 47. In Behary Lal Pandit v. Kedar Nath Mullick (57) there was a similar decision that no appeal lay, and in Doyamoyi Dasi v. Sarat Chunder Mojumdar (58) the Calcutta High Court held that a second appeal lay against the order of the Subordinate Judge refusing to confirm the sale on the ground that there was no subsisting decree, and for that decision they appear to have relied on the decision in the case of Prusunno Kumar Sanyal v. Kali Das Sanyal . But the confirmation, it must be noticed, of sale is peculiarly a matter which relates to execution, and it does not appear therefore that this case is of any assistance to the appellant.

76. In the case of Gahulam Shabbir v. Dwarka Prasad (59) the Allahabad High Court held that no appeal lay from an order by the Judge in the execution giving an order for delivery of possession under Section 319 of the CPC. The basis of the decision in that case was that the status of the decree-holder, as a purchaser, was distinct from his character as a decree-holder and reliance was placed on the Full Bench decision of the Allahabad High Court in the case of Sabhajit…(Applicant); v. Sri Gopal…(Opposite Party).* (60).

77. The authorities which are more directly in point, that is to say, whether an auction-purchaser in execution of a decree can bring an action for possession started with the case of Kristo Gobind Kur v. Gunga Pershad Surma . That was a case in which, in the first place, the property of the judgment-debtor was sold in execution of the decree against him. The purchaser was held afterwards to have been a benamidar of the judgment-debtor. The same property was attached and sold in execution of another decree, the purchaser taking formal possession but was not actually put into possession of the property. He then brought a fresh suit against the purchaser in the first sale; but it was held that the suit would not lie as the auction-purchaser should have got actual-khas and substantial possession in the execution, and if, to use the words of the Court, the executing Court could have given him substantial possession under Section 263 or Section 264 of the CPC, and that if that had not been done the only method by which the purchaser could acquire possession was in the execution proceedings in the suit in the second sale.

78. In the case of Bhimal Das v. Mt. Ganesh Koer the other aspect of the case was dealt with, namely, whether an appeal lay from a decision in an application for possession by the decree-holder purchaser. It was there held that no appeal lay, that it did not relate to the execution, discharge or satisfaction of the decree, and that the basis of the decision appears to have been that the sale in execution came to an end. We then have the case in the Calcutta High Court which has given rise to this reference, the Full Bench decision in the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar . The question referred to the Full Bench in that case was whether the order passed in an application under O. 21, R. 95 by an auction-purchaser, who was the decree-holder, is an order under Section 47 of the CPC. This is a decision which, it is said, has destroyed the cursus curiae of the Calcutta High Court in regard to this matter. It was there held that an application under O. 21, R. 95, came under Section 47 of the CPC. The cases of the various High Courts in India were reviewed by Chatterjee, Ag. C.J, and the basis of his decision appears to be contained in the following observation:

“It appears, therefore that the Court, in delivering possession of the property sold, does so under the provisions relating to execution of decree, and it is difficult to see how else it can deliver such possession. It is said that such delivery is made under the summary powers given by the Code, that it is merely incidental to the sale, and the contest arises as the result of the sale …… Such proceedings may not affect the decree, nor impeach the sale, but when the question arises as to the kind of possession to be delivered it is a question relating; to the execution of the decree.”

79. The last sentence is significant, the facts of the case being that the decree-holder purchaser applied for khas possession under O. 21, R. 95, but the executing Court held that he was entitled to possession under R. 96, that is, possession by his tenants who were in possession.

80. This fact is the basis of an argument addressed to us by Mr. Mullick that this case is not in fact against him because, as was pointed out by Chatterjee, Ag. C.J the matter in dispute was peculiarly a matter relating to the execution as came to be determined of the sort of possession the applicant was entitled to. I am not sure that the case can be distinguished on that ground, because, if delivery of possession did not relate to the execution, discharge or satisfaction of the decree, it seems difficult to see how the kind of possession could relate to the execution, discharge or satisfaction, be it remembered that the main basis of the argument on behalf of the respondent is that delivery of possession is wholly unconnected with the execution.

81. Again in the case of Seru Mohun Bania v. Bhagoban Din Pandey , the auction-purchaser had purchased property of the judgment-debtor in execution but subsequently sold it to a third party and handed to him the sale certificate. The purchaser failed to obtain possession because of some difficulty as regards the description of the boundaries of the lands sold in the sale certificate. Failing in his application under the Code of Civil Procedure, he brought an action for possession. In a short judgment, basing their decision on Article 138, Limitation Act, the learned Judges held that the action lay. In this connexion there is a further argument, with which I shall deal in a moment, that as regards Article 138 which definitely prescribes the period of limitation for an action by a purchaser in execution proceedings for possession, that a third party purchaser or stranger to the suit is in a different position from that of a decree-holder purchaser.

82. Again in Krishna Lall Dutt v. Radha Kishun Surkhel a third party auction-purchaser in an action for possession was held to be entitled to bring his action based on the provisions of Article 138, Limitation Act. In Halodhar Shaha v. Harogobind Das (61) out of six decree-holders three had sold their share in a decree to a third party. An application was then made by the purchaser for the substitution of his name on the record in four of the rent suits in the place of those persons who had sold their share to him. The application was refused on the ground that the purchaser was merely a benami for two of the judgment-debtors. Subsequently certain parties obtained a money decree against the purchaser and brought to sale the 10 annas interest in the rent decrees. A suit was then instituted to recover a certain sum of money which had been realized in the execution. It was held by the Subordinate Judge that the action was barred by reason of the provisions of Section 244 of the CPC. The question that came to be decided was whether the suit as between the parties to the suit was held to be barred. It was held that the suit was not barred as the purchaser of the decree was not a party to the suit.

83. In the case of Kishori Mohun Roy Chaudhuri v. Chandra Nath Pal certain decree-holder purchasers brought a suit to recover possession of the property which they had purchased in the execution proceedings, alleging that they had been dispossessed by the defendants. Two questions arose, one as to limitation, the other as to whether the suit was maintainable. It was held that the suit was maintainable, that Article 138, Lim. Act, contemplated such a suit, and that under Section 9 of the then CPC., the plaintiffs were entitled to have recourse to the civil Court for the trial of any suits of a civil nature unless cognizance of such suits was expressly taken away.

84. There are a number of other cases in the Calcutta High Court which, on the face of them, appear to be against the contentions of the respondents but which; it is argued, can be differentiated. I have already referred to the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar . In the case of Madhusudan Das v. Gobinda Pria Chowdhurani the decree-holder purchaser made an application for possession by ejecting the judgment-debtor. There was an objection on the part of the judgment-debtor for khas possession, and in the appeal the matter that came up for decision was whether the application of the objector came within Section 244 of the CPC. It was held that it did. It is to be noted that the objection of the judgment-debtor to the decree-holder's application for possession was that some time before the decree had been obtained by the decree-holder purchaser (rent decrees) the whole of one and the half of the other holdings had been sold, and therefore the possession could not be disturbed. The Munsif held that the sales by the father to the sons were not collusive, that one of the objector had already been recognized by the decree-holder purchaser, and that the question of whether the objector had acquired title or not should be settled in a regular suit; he further held that symbolical possession might be given to the applicants. On appeal to the District Judge it was held that the applicant was entitled to khas possession, but he incidentally held that the objectors were not entitled to bring a regular suit. The main discussion in the judgment was whether, as I have already stated, the matter came under S. 244. Macpherson and Stevens, JJ., expressed the view that the proceedings for delivery of possession were proceedings in execution of the decree and that they were undoubtedly so when the decree is for possession, as proceedings were necessary in order to give effect to the decree. It had been argued, it appears, that in a money decree the execution was complete and the sale was confirmed; but the Court came to the conclusion that it was a part of the execution by reason of the fact that the law provided for delivery of possession by proceedings which formed part of the proceedings in connexion with the execution; and accordingly the learned Judges held that the matter fell to be determined under S. 244 of the Code. The only manner in which this case can be differentiated is that the objection which was being taken was being taken by the judgment-debtor.

85. In Umapati Mukerjee v. Sheikh Soleman (62) the defendant had bought in his own mortgage suit the property of plaintiffs 1 and 2. An application was made for possession. Resistance to the application was made by cosharers, who were not parties to the decree, but they failed in their claim. The cosharers then brought a title suit, the mortgagors alleging that they had been dispossessed of certain properties which had not been covered by the mortgage suit and they joined with the plaintiffs for recovery of possession. Both the lower Courts decided the suit in favour of the plaintiffs although there was an allegation that the suit was not maintainable. The decision of the Court was that the matter should have been determined under Section 47 of the CPC, and reliance was placed for that purpose on Ramabhadra Naidu v. Kadiriyasami Naicker a decision of the Judicial Committee of the Privy Council. But they treated the suit as coming under S. 47 of the Code. There is no doubt, as it seems to me, that this case is distinguishable by reason of the fact that the question which fell to be determined was whether certain properties in suit were properties which could have been sold in execution; that is a matter peculiarly relating to execution proceedings.

86. The decisions of the Full Benches of the respective High Courts do not agree with regard to this matter. In the case of Moti Lal v. Makund Singh it had been decided by a Divisional Bench that an application to be put into possession by a decree-holder purchaser was a step, in aid of execution. But in the case of Bhagwati v. Banwari Lal , a Full Bench decision of the Allahabad High Court, a decree-holder mortgagee had purchased the mortgaged property in execution of a decree and had obtained a sale certificate and made a gift of the property to the plaintiff in the suit out of which the appeal arose, and the action of the donee was to be put into possession alleging that the judgment-debtor had remained in possession. This action in the Subordinate Court had been dismissed. In the case the majority of the Judges held the suit was maintainable, deciding that a decree-holder purchaser did not cease to be a party to the suit, by the mere fact of purchasing but that the matter did not relate to execution within the meaning of S. 244. One comment is to be made on this and that is that in a later case, the case of Mohsion Raza Khan v. Haidar Bakhsh , two Judges of the Divisional Bench held that an application under O. 21, R. 95, was a step-in-aid of execution, following the opinion of the majority of the Judges on that point in the Full Bench case to which I have referred and also following the decision in the case of Moti Lal v. Mukund Singh . In the case of Sadashiv Mahadu Dhole v. Narain Vithal Mawal a decree-holder mortgagee purchased in a mortgage suit. He subsequently brought a suit for recovery of possession of the mortgaged property after the sale when the execution had been confirmed.

87. The question there was whether the suit was barred by the provisions of Section 47 of the CPC. Relying upon the case of Madhusudan Das v. Gobinda Pria Chowdhurani it was decided that the decree-holder does not cease to be a party to the suit because he had become a purchaser and it was also held that the matter related to the execution and therefore the suit was barred; and in dealing with Article 138, Limitation Act, they came to the conclusion that although it did not override the provisions of the Code of Civil Procedure, yet that article related to a suit by a third party purchaser and that the decree-holder purchaser had recourse only to the execution department to be placed in possession. However, this decision has been definitely overruled in the case of Hargovind Fulchand v. Bhudar Raoji , a Full Bench decision of the Bombay High Court. Here it was held that the heirs of the decree-holder purchaser were entitled to bring a suit for possession.

88. In the Madras High Court in the case of Kattayat Pathumayi v. Raman Menon the decree-holder having purchased a certain property sold in execution, applied under Section 318 of the CPC. The application was held to be barred. He then brought an action. The defence was that it was barred by the provisions of S. 244, and it was held, relying on the cases of Muttia v. Appasami (63), Lakshman Chettiar v. Kannammal (64), Kasinatha Ayyar v. Uthumansa Rowthan (65) and Madhsudan Das v. Gobinda Pria Chowdhurani , that the matter related to the execution, discharge or satisfaction of the decree and the suit was therefore barred. In a later case of Sandhu Taranganar v. Hussain Sahib the same point came up for consideration and the Chief Justice, delivering the judgment of the Court, stated that, if the matter were res integra, he would have been disposed to hold that the question was not one relating to the execution, discharge or satisfaction of the decree. But having regard to the previous decisions of the Court and the Calcutta High Court the balance of the authorities supported the proposition that the matter related to the execution, discharge or satisfaction of the decree and the suit being a suit for delivery of possession therefore was not maintainable.

89. It is quite impossible to reconcile the decisions of the various High Courts in this matter.

90. It will be seen that where the cases are definitely in point, that is to say, where the question came to be decided as in Haji Abdul Gani v. Raja Ram whether an appeal lay from a decision in an application under O. 21, R. 95, or in those cases in which an action was brought by a decree-holder purchaser for possession, the views of the various High Courts as to whether an application for possession under the Code was a matter that came within S. 244 or whether the action was barred under the old S. 244 or the present S. 47 depended upon whether the Court held the view that the execution came to an end at the time of the sale. Some of the cases, it may be observed, held that the action was not barred by reason of Section 9 of the Code and Article 138 of the Limitation Act. It remains therefore for us to decide whether on principle the one or the other of those views is to be held to be correct. One or two observations perhaps are necessary, amongst them is this, that the answer to the question must necessarily vary according to the nature of the decree. If the decree is for delivery of possession then it cannot be said that the execution is at an end at any time earlier than the actual delivery of possession by the executing Court. But the matter is considerably different when the decree is a money decree which it may be said is satisfied when the property is brought to execution and the sale proceeds handed over to the decree-holder.

91. Mr. Mullick, as I have already pointed out, differentiates those cases in which the action was brought by the judgment-debtor for possession of property which had been sold in execution, in those cases the allegation being in substance that the property was not liable to be sold and it may well be said that is a matter which relates to the execution in so far as it is a question which the executing Court must decide in the process of execution.

92. Order 21, R. 72, Cl. (2), of the Code provides that

“where a decree-holder purchases with such permission (the permission conies under Cl. (1), R. 72) the purchase money and the amount due on the decree may, subject to the provisions of S. 73, be set off against one another and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.”

93. It will be seen by this rule that the satisfaction of the decree therefore is contemplated in the case of a decree-holder purchaser when the price paid by the decree-holder is set off against the amount of the decree. Can it be said therefore that part of the execution of the decree is the order for delivery of possession which may be made under O. 21, R. 95.

94. One of the arguments advanced, and indeed an argument which appears to have held favour with the Judges in the case of Madhusudan Das v. Gobinda Pria Chowdhurani , is that even if the answer to that question be in the negative, yet the fact is that the legislature has provided means under the Code of Civil Procedure by which possession can be given; it is made therefore necessarily a part of the execution, discharge or satisfaction of the decree.

95. Now as regards the action for possession, by a person who has purchased in execution of his decree, it has been pointed out, and it is clear, that as title is not based on the decree but by his purchase in the execution sale the only possible bar to such a suit is Section 47 of the CPC. In the first place in S. 9 of the Code the legislature declares that the civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and again to state the obvious, a suit of this character can only be barred if it relates to the execution, discharge or satisfaction of the decree. As I have already pointed out, I think it is impossible to say that it relates to the satisfaction of the decree (O. 21, R. 72). Equally it must be said that it does not relate to the discharge of the decree, nor does it relate to execution at all. The matters which distinctly relate to execution are such matters as are referred to in O. 21, Rr. 50 to 90 and more particularly in connexion with the point which we are discussing, Rr. 90 to 93. As was held in one of the cases, the sale certificate is not absolutely necessary under O. 21, R.-94, although of course it may be obtained at the hands of the Court. The argument that a sale comes to an end when the property is sold and satisfaction is entered of course does not apply in the case where the decree itself is a decree for possession of immovable property. It cannot be said therefore that an order putting a decree-holder in possession is not in execution, discharge or satisfaction of his decree. But in a money or mortgage decree I am clearly of the opinion that the execution comes to an end when the decree is declared to be satisfied under O. 21, R. 72. Incidentally a further point arises on the argument of Mr. Mukesjee that although a suit is barred to a decree-holder purchaser it may not be barred as against a third party purchaser by reason of the provisions of Article 138, Lim. Act. He appears to admit that such an action by such a party is maintainable. I am of the opinion that a decree-holder purchaser is in no worse a position than a third party purchaser. Lord Watson pointed out in the case of Mahabir Prasad Singh v. Macnaghten that:

“leave to bid puts an end to the disability of the mortgagee, and puts him in the same position as any independent purchaser.”

96. It is true that the case was one in which it was urged that the decree-holder purchaser was in the position of a trustee and therefore it is not directly in point; but the principle which Lord Watson lays down seems to me to be equally applicable to this case; in other words, although he is still a party to the suit for most purposes, he is in precisely the same position as an independent or third party purchaser. Having decided that question under Article 138 it would be difficult to say that the legislature assumed that a decree-holder purchaser had no cause of action. As I understand Mr. Mukerjee's argument he does not admit that a third party purchaser has such a right of action. To accede to this however would imply that Article 138 was redundant. Mr. Sushil Madhav Mullick in this connexion argues that the law of limitation is merely the adjective law, in other words law relating to procedure: see Her Highness Buchmaboye v. Lulloobhoy Motichand . That being so, it must be construed together with other statutes relating to the procedure, that is to say, statutes in pari materia. In this case it being a case of doubt we may, and indeed must, look at the statutes, that is to say, the Limitation Act and the Code of Civil Procedure in order to come to a conclusion on the matter: Rex v. Loxedale and Chunilal Jethabhai v. Dabyabhai Amulakh . If that be so, then assuming that the decree-holder purchaser is in the same position as a third party purchaser it seems to me that there is no doubt that this action by the decree-holder purchaser was maintainable. There is however even a weightier reason for answering the question which is submitted to this Court in the negative, than those which I have already advanced. This High Court was brought into existence in the year 1916. Prior to that the High Court of this province was the Calcutta High Court. From the year 1883 as held in Seru Mohun Bania v. Bhagoban Din Pandey to 1916 it was undoubtedly the law of this province that such an action was maintainable. In the very first year of the existence of this High Court the Full Bench decision in Abdul Gani v. Raja Ram was arrived at. This is a matter of procedure and if it is, as indeed it was decided in the case to which I have just referred, then undoubtedly the lex fori of this province is in favour of such an action.

97. Mr. Mukerjee endeavours to meet that point by arguing that although this High Court decided the matter in 1916 there has not been an uninterrupted flow of decisions to the same effect in this High Court. He refers to a number of decisions which would appear to be against the decision in Abdul Gani v. Raja Ram . But one of the decisions to which he makes reference is the case of Asharan Baid v. Raghunath Prasad , a decision of Mullick and Ross, JJ. Mullick, J., decided the point contrary to the decision in Haji Abdul Gani v. Raja Ram , although from the report of the judgment it does not appear that the Full Bench decision was brought to the learned Judge's notice. But it is significant and Ross, J., pointed out during the course of this argument that he contented himself by saying that the appeal should be dismissed on its merits and he refrained from discussing this question. But the argument of Mr. Mukherjee is wholly unsupportable. The short answer to it is that once a Full Bench of the High Court has decided a matter no Judge is entitled to come to a decision to the contrary, and whether the decision has been questioned or whether it has not, the Full Bench decision in Haji Abdul Gani v. Raja Ram finally decided the question in this province until a Bench of greater authority reverses that decision.

98. Lastly it is argued by Mr. Mullick that we should hesitate before upsetting a decision which had stood so long in this province, indeed from the very institution of the High Court here, a decision upon which litigants have acted and upon which many titles are now based. In support of his argument he refers to a well-known principle of law which was stated by Mookerjee, J., in the case of Kedar Nath Hazra v. Manindra Chandra Nandi :

“The Courts must always hesitate to overrule decisions which are not manifestly erroneous and mischievous, which have stood for many years unchallenged and which from their nature may reasonably be supposed to have affected the conduct of a large portion of the community in matters relating to rights of property; Young v. Robertson (66).”

99. Undoubtedly the decision in Haji Abdul Gani v. Raja Ram is obviously not manifestly wrong, unjust or mischievous, especially having regard to the fact that there has been such a great difference of opinion in India on the matter, and it is an undoubted fact that litigants in this province have acted upon that decision and that if it is disturbed a large number of title would undoubtedly be destroyed. For these reasons I am of the opinion that the decision should be left undisturbed. I am also of the opinion that the question submitted to the Bench should be answered in the negative.

Kulwant Sahay, J.:— In the order of reference I expressed the view that I was inclined to agree with the opinion of the majority of the Judges composing the Full Bench of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar and to hold that a suit by a decree-holder auction-purchaser or his representative-in-interest for recovery of possession of the property purchased by him in execution of his decree was barred by the provisions of Section 47 of the CPC. After hearing the arguments of the learned advocates I am satisfied that the view then expressed by me was not correct. Section 9 of the CPC, gives jurisdiction to the Courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The suit by a decree-holder auction-purchaser for possession of the property purchased by him in execution of his decree is certainly a suit of a civil nature, the question is whether the cognizance of such a suit is either expressly or impliedly barred. The only bar which can with any show of reason be contended to be imposed is by the provisions of S. 47 of the Coda. This section provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separata suit. The decree-holder does not cease to be a decree-holder when he purchases the property with the leave of the Court. He is therefore a party to the suit in which the decree was passed. But a suit for possession by the decree-holder auction-purchaser does not ordinarily raise any question relating to the execution, discharge or satisfaction of the decree.

100. The decree is satisfied when the sale is confirmed and the further act of delivery of possession has nothing to do with the execution, discharge or satisfaction of the decree. In a simple suit for possession of the property sold, no question is raised which would relate to the execution, discharge or satisfaction of the decree. The plaintiff in such a suit seeks to recover possession on the basis of the title acquired by him by the sale in execution of the decree. If therefore the suit be a simple suit for possession on the allegation that the plaintiff had purchased the property in execution of his decree but that possession had not been acquired by him and that he was being opposed in taking possession by the judgment-debtor such a suit is not either expressly or impliedly barred by the provisions of S. 47. If however any question is raised in the suit either by the plaintiff or by the defendant which may involve a question relating to the execution, discharge or satisfaction of the decree, the decision of such a question would be barred by the provisions of S. 47. Such a question was raised in the Full Bench case of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar and also in the Privy Council decisions in Ganapathy Muialiar v. Krishnamachariar and Ramabhadra Naidu v. Kadiriyasami Naicker referred to in the order of reference. But where no such question is raised the bar imposed by S. 47 does not apply, and no other bar either express or implied exists to the maintainability of such a suit. In this respect the position of the decree-holder is the same as that of a third party purchaser and O. 21, Rr. 95 or 96 of the CPC, does not prescribe the only mode of obtaining possession of the property purchased. It is unnecessary to consider the case of a decree for possession of immovable property because such a case is not contemplated in the order of reference. Where a decree directs delivery of possession of immovable property to the decree-holder, it is clear that no separate suit can lie for possession of that property and the only way in which the decree-holder can obtain possession is by means of an application for execution of the decree. The casa contemplated is one in which the decree-holder purchases the property in execution of a decree for money or on a mortgage by which a sale is directed for recovery of the mortgage money.

101. I agree in answering the question referred to the Full Bench in the negative. I refrain from discussing the various decisions on the point as they have been elaborately considered in the decisions of the other members of this Bench; and I generally agree with the view expressed by my learned brothers. The Full Bench decision of this Court in Abdul Gani v. Raja Ram must be held to be correct.

V.B/R.K

102. Reference answered.