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 Civil Procedure Code; 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?”

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 Order XXI, rule 72, of the Code of Civil Procedure. The judgment-debtors filed an application under Order XXI, rule 90 and section 47 of the Code for setting aside the sale. The application was rejected, and the sale was confirmed by order no. 50, dated the 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 Exhibit 12). On confirmation, the sale became absolute under Order XXI, rule 92, and the property vested, in the purchaser under section 65 with retrospective effect from the time of the sale which had taken place on 30th May, 1914.

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 Order XXI, rule 72(2), on the 26th May, 1915, recording an order to that effect in the order-sheet as well as in the register of mortgage suits (Exhibit 16).

In 1926 the 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 the 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 the 26th of May, 1915, the date on which the sale 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 Civil Procedure Code and that the only remedy of the decree-holder purchaser was to take delivery of possession under Order XXI, rule 95, read with Article 181 of the Indian Limitation 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, the 30th May, 1914, and recorded in order no. 34 (Exhibit 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 Code of Civil Procedure and this is the subject-matter of the reference.

The suit has been brought within twelve years but more than three years from the date of 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 Order XXI, rule 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.

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

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?

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.

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 Order XXI, rule 92, of the Code of Civil Procedure, 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 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”.

This is the common law rule and is recognized in section 9 of the Code of Civil Procedure 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”.

Article 138 of the Limitation 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”. It makes no distinction between a decree-holder purchaser and a third party purchaser.

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 Order XXI, rule 92, confirming a sale or setting aside a sale by any person against whom such order is made is expressly barred by clause (3) of that rule; but that has no application to the present case. Reference is made to section 47 as barring such a suit.

Now section 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.”.

In the case of Antu v. Ghulam Muhammad Khan it was held that the jurisdiction of a Civil Court is not excluded unless the cognizance of the entire suit as brought is barred. Section 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 the 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 section 47 would not operate 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 section 47.

The argument in support of the contrary view is that rule 95 of Order XXI 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 section 47 and a separate suit in respect thereof is barred by implication.

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 section 51(a) and rule 11(j)(i) of Order XXI] and the decree is not satisfied until, possession is delivered to the decree-holder under rule 35 or 36 of Order XXI and as such it would relate to the execution, discharge or satisfaction of the decree under section 47 and a separate suit for possession by the decree-holder would be barred: vide Sovani Jena v. Bhima Ray and Sridhar Sirdar v. Jageshwar Singh Mahapatra.

In the latter case when the decree-holder applies under section 51(b) read with rule 11(j)(ii) of Order XXI for execution of the decree by sale of property the Court directs the sale under Order XXI, rule 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 clause (1) of rule 72, the purchase money is set off against the amount due under the decree and clause (2) of the rule directs that

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

If a third party purchases the property the purchase-money is deposited in Court under rules 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 rule 64. If the sale is not set aside under rules 89 to 91, it is confirmed and becomes absolute under rule 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 (Exhibit 8) and the register of suits (Exhibit 16). Thus ends the execution of the decree.

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 section 65 retrospectively from the time when the property is sold and he acquires a right to possession of the property. He had existence as a purchaser until the execution had terminated with the sale, and until he had paid the full purchase-money wherewith to satisfy the decree the property was liable to be re-sold: vide Order XXI, rule 86. If the decree-holder, purchases without the leave of the Court the property is liable to be re-sold. 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.

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 clause (2) of rule 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 Order XXI, rule 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 section 17.

Now, rules 95 and 96 of Order XXI 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 resistence 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 section 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 rule 35 possession is delivered in the course of execution of the decree which directs the delivery of a specific property.

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

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 rules 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, he 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 rules 95 and 96. The mere fact that an enactment provides a summary remedy does not constitute a bar to a regular suit: Sharifa v. Munekhan.

So far back as in 1883 in the case of Jagarnath v. Baldeo the point was concluded by a Full Bench decision of the Allahabad High Court consisting of the Chief Justice and four other Judges. In that case no certificate of sale was obtained and no step was taken to obtain possession from the executing Court under the summary remedy provided by sections 263 and 264 of the then Code of Civil Procedure (Act VIII of 1859—now rules 95 and 96 of Order XXI). 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 Modhub Mozoomdar was adopted. This decision was followed in the Calcutta. High Court in the case of Iswar Prasad Gurgo v. Jai Narain Gir. The earliest decision of that Court to the contrary in Kristo Govind Kur v. Ganga Pershad Surma was overruled and the other decisions in Lalit Coomar Bose v. Ishan Chandra Chakarbarty, Seree Mohun Bania v. Bhagowandin Pandey and Krishna Lal Dutt v. Radhakishun Surkhel were either distinguished or explained.

The view taken by the Allahabad High Court was re-affirmed in the case of Kishori Mohan Roy Chaudhury v. Chunder Nath Pal [Sir W. Comer Petheram, C.J, and Chose, J.]. In that case upon a consideration of section 318 (now Order XXI, rule 95) and section 11 (now section 9) of the Code of Civil Procedure and Article 138 of the Limitation 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 section 318 of the Code. This view has been adopted in the other High Courts.

Therefore, it is now settled that the summary procedure for obtaining possession under Order XXI, rules 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.

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 Order XXI. rule 95 or 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 twelve years under Article 138 to three years under Article 181 of the 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.

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: Her Highness Ruckmaboye v. Lulloobhoy Mottichand; so is the Code of Civil Procedure. They are in pari materia, and, according to the dictum of Lord Mansfield in Rex v. Loxdale, they are to be “taken and construed together 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 twelve years of a property purchased at a Court sale, does not make any distinction. In it the general word “purchaser” has been used. In Order XXI of the Code of Civil Procedure wherever it is intended to make a distinction between a decree-holder purchaser and a third party purchaser, it has been expressly stated: vide rules 72 and 84, clause (2), which apply to a decree-holder purchaser and rules 84(1), 85 and 86 which apply to a third party purchaser. Rules 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 section 47 under which it will have the force of a decree within the definition of the term in section 2(2). A third party purchaser will not have any right of appeal as he cannot take advantage of section 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 of the Limitation Act or in the rules in Order XXI of the Code of Civil Procedure. This has not been done. On the other hand, reading Article 138 together with section 9 and Order XXI, rules 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 twelve years. They are not ambiguous and consequently there is no question of discovering the intention of the Legislature by implication. Section 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 Code of Civil Procedure. The principle underlying the decision of their Lordships of the Judicial Committee in Phoolbas Koonwur v. Lola Jogeshur Sahay and of the Bombay High Court Chunilal Jethabhai v. Barot Dahyaphai Amulakh, though under different circumstances, would apply.

It is urged that the rights of a 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 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.

No doubt the decree-holder cannot purchase without express permission of the Court obtained under Order XXI, rule 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 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 disability of the mortgagee and puts him in the same position as an independent purchaser.” Therefore, although the decree-holder was a party to the suit and by his purchase does not cease to be so, he is put in the same position as any third party purchaser. If a third party purchaser has a double remedy (1) a summary one under Order XXI, rule 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 Order XXI, rule 95, as was the view taken in Kristo Govind Kur v. Ganga Pershad Surma; but, as already shewn, this view does not now hold good and a third party purchaser has a right to bring a suit within twelve years.

The Privy Council decisions—Prasanno Kumar Sanyal v. Kali Das Sanyal, Ganapatti Mudaliar v. Krishnama Chariar, Ramabhadra Naidu v. Kadiriyasami Naicker and Seth Motilal Hirabhai v. Bai Mani illustrate the cases which would come under section 47 of the Code.

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 section 244 (now section 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.

In the second case [Ganapati 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 section 47.

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.

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. 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 section 47 of the Code.

A question may be raised as to the nature of possession, namely, whether direct or khas possession under rule 95 or indirect or symbolical possession under rule 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.

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 section 47 of the Code. Instances might be multiplied where questions raised in the suit have been held to be barred by section 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 section 47. The majority of the High Courts in India have taken the same view.

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. It overruled the contrary decisions of that Court in Moti Lal v. Makund Singh, Kesri Narain v. Abul Hasan and Sheo Narain v. Nur Muhammad. That decision has since been acted upon in that Court: vide Buddhu Missir v. Bhagirathi Kunwar, Mohsin Raza Khan v. Haldar Baksh and Nusrat Ali v. Sakina Begam. The Full Bench decision of the Allahabad High Court has been adopted by the Lahore High Court in Chotha Ram v. Musammat Karmon Bai. The Bombay High Court in a Full Bench decision in Har Govind Phoolchand v. Bhudar Rauji followed the Allahabad decision and overruled an earlier decision to the contrary of their own Court in Sadashiv bin Mahadu Dhole v. Narain Vithal Mawal. A Full Bench of the Oudh Chief Court in Gayabakhsh Singh v. Kunwar Rajendra Bahadur Singh has also followed suit and adopted the Full Bench decision of the Allahabad High Court.

The Madras High Court has taken a contrary, view. It is, however, noticeable that in the later two (decisions—Kattayat v. Raman Menon and Sandhu Taranganar v. Hussain Sahib 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 Calcutta 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, Civil Procedure Code, when such proceedings could not possibly affect the execution, discharge or satisfaction of the decree.”

Thus the contrary view is maintained in the Madras High Court on the ground of a settled cursus curiæ 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.

The question has had a chequered course in the Calcutta High Court. One of the earliest decisions in Kristo Govind 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 some hesitation by Sir Richard Garth, C.J, and Morris, J. in 1881 in Lalit Coomar Base v. Ishan Chandra Chakarbarty. It was distinguished in Sri Mohan Bania v. Bhagowandin Pandey and in Krishna Lal Dutt v. Radhakishun Surkhel.

In 1885 in the case of Iswar Pershad Kurgo 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 section 318 (Order XXI, rule 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. Musammat Ganesha Kuer [Trevelyan and Stevens, JJ.] where it was held that an order passed under section 318 (now Order XXI, rule 95) of the Code is not appealable and no right of appeal is given by section 588 (now Order XLIII) from such an order and the order cannot be said to be one under section 244 (now section 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 section 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 section 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 Madhusudan Das v. Gobinda Priya Chowdhurani the Court took a contrary view. Again an opposite view was taken in the following cases: Mahomed Mosraf v. Habil Mia, Umesh Chandra Dass v. Shib Narain Mandal.

In this state of oscillation and conflict of views came the case of Sasi Bhusan Mookerjee v. Radha Nath Bose. 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 Order XXI, rule 95. Their Lordships held that an order under Order XXI, rule 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 of 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 twelve 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 Abduram Haldar v. Nakuleshwar Rai Chowdhury, Lakhi Pria Guha v. Nand Kumar Basu and Panchanan Pal v. Sukhamoy Santra [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; Order XXI, rule 95, of the Civil Procedure Code to apply for recovery of possession of the property purchased by him and a suit for possession would not be barred by section 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 Haji Abdul Gani v. Raja Ram.” This is a decision of our Court.

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 rule 95 of Order XXI of the Code of Civil Procedure. 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.”

The immediate question for determination in that case, was whether an appeal lies from an order passed under rule 95 of Order XXI of the Code. Under Order XLIII of the Code no appeal lies from such an order. An appeal would lie only if the order passed came within the purview of section 47 by reason of an order under that section being a decree within the definition of the term in section 2, clause (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 section 244 of the Code of 1882 or section 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.

The question directly arose in the case of Sridhar Sirdar v. Jageshwar Singh Mahapatra [Dawson Miller, C.J, and myself]. In that case no step was taken to obtain possession under Order XXI, rule 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 section 47. The case is similar to the present one.

Similar was the view taken by this Court in Dukhu Mandal v. Gopinath Biswas, Jadab Chandra Poddar v. Rameshwar Marwari [Wort and James, JJ.], Triloke Nath Jha v. Bansman Jha* and Das, JJ.], Lakshmi Narain Singh v. Rebati Debya and Malik Abdul Mokit v. Abdul Rashid [Ross and Chatterjee, JJ.].

Thus the Full Bench decision in Haji Abdul Gani v. Raja Ram 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* 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.

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.

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 Sashi Bhushan Mookerjee v. Radha Nath Bose which this Court followed.

It may, therefore, be said that this Court has reaffirmed 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. Maharaja Manindra Chandra Nandi. In overruling our previous decisions manifest mischief and injustice would be done 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 of the limitation Act. On the other hand, far from being erroneous, it has been shewn in the case of Sridhar Sirdar v. Jogeshwar 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 rase was—what kind of possession, whether khas or direct possession under Order XXI, rule 95, or an indirect or symbolical possession through tenants in actual possession under rule 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 section 47 and amounted to a decree and was appealable. The point directly arose in the Calcutta High Court in Ponchanan Pal v. Sukhamoy 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 Order XXI, rule 95, of the Civil Procedure Code to apply for recovery of possession of the property purchased and the question does not come under section 47, of the Code. He may maintain a separate suit for possession. This is a direct answer to the question before us.

Barring the Full Bench decision referred to above, a large 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.

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 Chotha Ram v. Musammat 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 Order XXI, rule 95. The case is similar to the one in Sasi Bhusan Mukherjee v. Radha Nath Bose where the possession delivered to the assignee of the decree-holder purchaser long after the application for 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.

In all these cases it was held (1) that the rights of a 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 Order XXI, rule 95 or 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 case 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 section 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 that section.

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 section 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 suit in which the decree was obtained, when he purchases at the Court sale with the leave of the Court under Order XXI, rule 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 rules 95 and 96 of Order XXI 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 his particular case.

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 twelve 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 Civil Procedure Code.

Article 138 of the Limitation Act gives to a purchaser at a sale in execution of a decree a period of twelve years from the date when the sale becomes absolute for a suit for possession of immoveable property sold when the judgment-debtor was in possession at the date of the 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 Code 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 Civil Procedure Code 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 Order XXI, rule 92, confirming a sale or setting aside a sale by any person against whom such order is made is expressly barred by clause (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 section 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. Krishnama Chariar and Rambhadra Naidu v. Kadiriyasami Naicker that a decree-holder 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 Mahdbir Pershad 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.” 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.

The question whether section 47 is a bar world, 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. Order XXI, rule 95, lays down the procedure for delivery of possession to an execution purchaser when the immoveable 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 rule 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 rule 95 or possession under rule 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 Koilash Chandra Tarafdar v. Gopal Chandra Poddar and it was expressly on this ground that the case was held to fall within section 47. If the question is, whether the person in actual occupation is there in the right of the judgment-debtor or not, is obviously not a question arising between the parties to the suit and a right of suit is expressly reserved by rule 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. As was pointed out by Mookerjee, J. in Sasi Bhusan Mokkerjee 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 section 244 of the old Code (section 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 rule 95; but it is settled law that a sale certificate is not 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.” Shah, J. said “Even when section 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 Code of Civil Procedure.” 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 Code of Civil Procedure. 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 of Schedule II to the Indian 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 Indian Limitation Act is there any distinction drawn between a decree-holder auction-purchaser and a stranger auction-purchaser.”

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 rule 95 of Order XXI in other words, an application for delivery of possession did not fall within section 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.

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 Civil Procedure Code. 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”?

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 Civil Procedure Code, 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 purchases 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 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 Mudalliar 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 section 244 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.” 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 Civil Procedure Code.

A very large number of authorities have been quoted both by Mr. Mukherji who appears on behalf of the appellant, and Mr. Sushil Madhab 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.

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 Order XXI, rule 95, no second 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 Poddar it was decided that a decree-holder auction-purchaser applying for possession under Order XXI, rule 95, came within the provisions of section 47 of the Civil Procedure Code as it was a question arising between the parties and was a proceeding relating to the execution, discharge or satisfaction of the decree.

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 Order XXI, rule 95 the second class arises out of actions in which the purchaser in execution had brought an action for possession. There has been a number of Full Bench decisions of the various High Courts in India relating to these matters and references will be made to those hereafter.

The first class refers to the point whether an appeal would lie or not from an order under Order XXI, rule 95. The first decision which is in favour of the respondent is Bhimal Das v. Musammat Ganesha Koer where it was decided that a decree-holder purchaser, applying for possession under-section 318 of the Code of Civil Procedure of that time had no second appeal to the High Court as it was not a matter relating to execution, discharge or satisfaction of the decree within section 244 of the Civil Procedure Code which is equivalent to section 47 of the present Civil Procedure Code. The basis of the decision was that, by the sale, the execution was complete and the decree being satisfied to the extent of the purchase money paid therefor. In Jagarnath Marwari v. Kartick Nath Pandey the decision was to the same effect and in the case of Hari Charan Dutta v. Monomohan Nandi 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 Order XXI, rule 95. 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 Order XXI, rule 95, did or did not come within the scope of section 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 recognise an agreement which the judgment-debtor alleged existed between him and the decree-holder urging that it came within the scope of Order XXI, rule 2. Therefore, in substance, the question was not whether an application to obtain possession came within section 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 section 47. In Behary Lal Pundit v. Kedar Nath Mullick there was a similar decision that no appeal lay, and in Doyamoyi Dasi v. Sarat Chunder Mojumdar 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.

In the case of Ghulam Shabbir v. Dwarka Prasad 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 Civil Procedure Code. 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 v. Sri Gopal.

The authorities which are more directly in point, that is to say, whether an action by the purchaser in 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 Civil Procedure Code 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.

In the case of Bhimal Das v. Mussammat Ganesha Kuer 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 Order XXI, rule 95, by an auction-purchaser, who was the decree-holder, is an order under section 47 of the Civil Procedure Code. 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 Order XXI, rule 95, came under section 47 of the Civil Procedure Code. The cases of the various High Courts in India were reviewed by Chatterjee, A.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”.

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

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 Chaterjea, A.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.

Again in the case of Saru 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 Civil Procedure Code, he brought an action for possession. In a short judgment, basing their decision on Article 138 of the Limitation Act, the learned Judges held that the action lay. In this connection 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, a third party purchaser or stranger to the suit is in a different position from that of a decree-holder purchaser.

Again in Krishna Lall Dutt v. Radha Krishna 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 of the Limitation Act. In Halodhar Shaka v. Har Gobind Das Koiburto 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 benamidar 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 realised 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 Civil Procedure Code. 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.

In the case of Kishori Mohun Roy Chowdhry v. Chunder 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 of the Limitation Act contemplated such a suit, and that under section 6 of the then Civil Procedure Code 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.

There 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 Civil Procedure Code. 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 sometime 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 objectors had already been recognised by the decree-holder purchaser, and that the question of whether the objectors 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 section 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 connection with the execution; and accordingly the learned Judges held that the matter fell to be determined under section 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.

In Umapati Mukerjee v. Sheikh Soleman the defendant had bought in his own mortgage suit the property of the plaintiffs nos. 1 and 2. An application was made for possession. Resistance to the application was made by co-sharers, who were not parties to the decree, but they failed in their claim. The co-sharers 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 suits were not maintainable. The decision of the Court was that the matter should have been determined under section 47 of the Civil Procedure Code and reliance was placed for that purpose on Ramabhadra Naidu v. Kadiriyasmi Naicker, a decision of the Judicial Committee of the Privy Council. But they treated the suit as coming under section 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.

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, 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 that 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 section 244. One comment is to be made on this and that is that in a later case, the case of Mohsin Raza Khan v. Haidar Baksh, two Judges of the Divisional Bench held that an application under Order XXI, rule 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. Makund Singh. In the case of Sadashiv Bin Mahadu Dhole v. Narayan 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. The question there was whether the suit was barred by the provisions of section 47 of the Civil Procedure Code. 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 of the Limitation Act they came to the conclusion that although if did not override the provisions of the Civil Procedure Code, 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.

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 Civil Procedure Code. The application was held to be barred. He then brought an action. The defence was that it was barred by the provisions of section 244, and it was held, relying on the cases of Muttia v. Appasami, Lakshmanan Chettiar v. Kannammal, Kasinatha Ayyar v. Uthumansa Howthan and Madhusudan 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 Taraganar 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 authority 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.

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

It will be seen that where the cases are definitely in point, that is to say, whether the question came to be decided as in Haji Abdul Gani v. Raja Ram where a second appeal lay to the High Court from a decision in an application under Order XXI, rule 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 section 244 or whether the action was barred under the old section 244 or the present section 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 hold 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.

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.

Order XXI, rule 72, clause (2), of the Code provides that

“where a decree-holder purchases with such permission (the permission comes under clause 1 of rule 72) the purchase money and the amount due on the decree may, subject to the provisions of Order XXI, rule 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”.

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 Order XXI, rule 95?

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 Civil Procedure Code by which possession can be given; it is made, therefore, necessarily a part of the execution, discharge or satisfaction of the decree.

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 Civil Procedure Code. In the first place in section 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 (Order XXI, rule 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 Order XXI, rules, 50 to 90, and more particularly in connection with the point which we are discussing, rules 90 to 93. As was held in one of the cases, the sale certificate is not absolutely necessary under Order XXI, rule 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 immoveable 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 decree I am clearly of the opinion that the execution comes to an end when the decree is declared to be satisfied under Order XXI, rule 72. Incidentally a further point arises on the argument of Mr. Mukerji 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 of the Limitation 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. 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. Mukerji'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 Madhab Mullick in this connection argues that the law of limitation is merely the adjective law; in other words, law relating to procedure—see Her Highness Ruchmaboye v. Lulloobhoy Mottichund. 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 Civil Procedure Code in order to come to a conclusion on the matter—Rex v. Loxdale and Chunnilal 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 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 Mohan 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 Haji Abdul Gani's case 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.

Mr. Mukerji endeavours to meet that point by arguing that although this High Court decided the matter in 1916 there has not been an un-interrupted 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 Haji Abdul Gani's case. But one of the decisions to which he makes reference is the case of Askaran Baid v. Raghunath Prashad, a decision of Mullick and Ross, JJ.: Mullick, J. decided the point contrary to the decision in Haji Abdul Gani's case 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 Mr. Justice Ross 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. Mukherji is wholly insupportable. 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 is not, the Full Bench decision in Haji Abdul Gani's case finally decided the question in this province until a Bench of greater authority reverses that decision.

Lastly it is argued by Mr. Mullick that we should hesitate before upsetting a decision which has 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 Mr. Justice Mookerjee in the case of Kedar Nath Hazra v. Maharaja 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”.

Undoubtedly the decision in Haji Abdul Gani's case 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 titles would undoubtedly be destroyed.

For these reasons I am of the opinion that 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 had 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 Civil Procedure Code. 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 Code of Civil Procedure 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 section 47 of the Code., 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 separate 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. 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 section 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 section 47. Such a question was raised in the Full Bench case of the Calcutta High Court in Kailash Chandra Tarafdai v. Gopal Chandra Poddar and also in the Privy Council decisions in Ganapathy Mudaliar v. Krishnamachariar and Rambhadra Naidu v. Kadiriyasami Naicker referred to in the order of reference. But where no such question is raised the bar imposed by section 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 Order XXI, rule 95 or 96, Civil Procedure Code, 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 immoveable property because such a case is not contemplated in the order of reference. Where a decree directs delivery of possession of immoveable 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 case contemplated is one in which the decree-holder purchases the property in execution of decree for money or on a mortgage by which a sale is directed for recovery of the mortgage money.

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 very 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 Haji Abdul Gani v. Raja Ram must be held to be correct.

[After the Full Bench decision the matter was placed before the Division Bench for final disposal.]

Khwaja Mohammad Noor, J.:— This is an appeal against the decree of the additional Subordinate Judge of Monghyr decreeing the plaintiff-respondent's suit for possession of certain properties with mesne profits subsequent to the institution of the suit. The facts leading to the present appeal are these: Jagdip Narain Singh and Sant Prasad Singh who were members of a joint Hindu family mortgaged to Babu Gopi Lal 4-annas pucca share of village Mighaul, Tauzi no. 1079, and 2 annas 10 gandas pucca share equivalent to 10 annas kucha share in a 4-annas partitioned patti of village Matihani Gopal, Tauzi no. 1097, for Rs. 4,350 bearing compound interest at 12 p.c.p.a with four-monthly rests under a registered mortgage deed, dated the 19th September, 1890, corresponding to 20th Bhado II, 1297 Fs. The mortgage money was not paid and on 15th September, 1903, Babu Gopi Lal instituted a mortgage suit no. 407 of 1903 in the Court of the Subordinate Judge of Monghyr. In that suit the original mortgagors, Babu Jagdip Narain Singh and Babu Sant Prasad, were defendants first party, their sons and grandsons were defendants second party and one Babu Sakhichand and members of his family who had acquired a subsequent mortgage in one of the properties, namely, Mighaul, were defendants third party. The suit was decreed on 7th June, 1904, and the decree was confirmed on appeal by the Calcutta High Court on 7th July, 1905. The final decree for sale was subsequently passed and Babu Gopi Lal, the decree-holder took out execution; and the mortgaged properties were sold on 30th May, 1914, for Rs. 40,966 and were purchased by the decree-holder. On that very day the 4 decree-holder filed a petition before the Court stating that if the judgment-debtor does not file objection of any kind and does not put in any petition for setting aside the sale he would return the purchased properties on taking Rs. 20,000 only. This was, however, not to be. The judgment-debtors filed an application for the setting aside of the sale which was rejected on 22nd May, 1915, and the sale was confirmed. There was an appeal to this Court which was dismissed on 3rd August, 1917. The decree-holder auction-purchaser subsequently died and it is said that some quarrel arose in the family. Whatever may be the reason, nothing seems to have been done after the confirmation of the sale by this Court. The sale certificate was not taken out, the delivery of possession under Order XXI, rule 95, was not applied for and a period of about twelve years expired since the date of the sale. On 22nd May, 1926, the heirs and successors of Babu Gopi Lal, the original decree-holder auction-purchaser, conveyed to the plaintiff, Babu Ramasray Prasad Chaudhury, the entire share in the two aforesaid villages purchased by their ancestor at the execution sale above referred, to. The conveyance was by three deeds of sale, Exhibits 2, 2a and 2b. One deed was by some of the heirs for 6-annas share, a second deed for another 6-annas share by some other heirs and the third deed for the remaining 4-armas share by the rest of the heirs treating the property sold as 16-annas. On the basis of these conveyances the plaintiff instituted the present suit on 29th May, 1926, seeking to recover the property and mesne profits since the suit, basing his title on the sale held on 30th May, 1914. The sons and grandsons of the original mortgagors, Babu Jagdip Narain Singh and Sant Prasad are the defendants first party; the representatives of. Babu Sakhichand, who had acquired a subsequent mortgage in Mighaul, are the defendants second party, and the heirs and successors of Babu Gopi Lal, who are the vendors of the plaintiff, are the defendants third party. Various defences were taken before the lower Court. I shall later on deal with so much of the defence of the defendants first party as is relevant for this appeal when I come to the appeal itself. Suffice it to say that the learned Subordinate Judge has decreed the suit and the defendants first party have appealed.

At this stage I propose to dispose of the defence of the defendants second party, the heirs of Sakhichand, who had acquired a subsequent mortgage in one of the properties named Mighaul. I have already said that Babu Sakhichand himself, find members of his family, were defendants third party in the original mortgage suit in which the property was sold. The decree was passed in their presence. Since then they sued on their mortgage and obtained a decree. What happened of this decree is not known. Their defence in the present suit was that their mortgage, dated the 11th September, 1903, though subsequent to the mortgage of Gopi Lal, should have a priority over the latter, on the ground that their money was advanced for the satisfaction of another mortgage of Mighaul prior to the mortgage of Gopi Lal. An issue was raised on this point, and the learned Subordinate Judge after going into the facts has decided it against them. They have not appealed. It is, therefore, not necessary to deal with this part of the case any further.

Before I take up the question raised in the appeal itself I would like to dispose of a small matter which has been urged on behalf of the appellants. It appears that the plaintiff after obtaining the decree in this suit executed it and obtained formal delivery of possession. When he applied to the Revenue authorities for the mutation of his name it was found that in the meantime a third party had got his name recorded in the registers of the Land Registration Department on the basis of some transfer from the defendants first party. The Revenue authorities refused to mutate the plaintiff-respondent's name and he has brought any separate suit against the defendants first party and their transferee whose name is entered in the records of the Land Registration Department. On the 2nd of November, 1928, the respondent put in an application in this Court bringing all these facts to the notice of the Court and requesting that as the appellant had no subsisting, interest in the property in suit the appeal had become infructuous and should be dealt with as such. At the hearing of the appeal the learned advocate for the respondent (plaintiff) has not pressed this application but the appellant tried to take advantage of it and urged that as according to the admission of the respondent himself the defendants appellants had no subsisting interest the suit itself was infructuous and ought to be dismissed on this ground, the conveyance by the defendants being before the Court. I am unable to accede to this contention. The plaintiff's case in the plaint was that he was resisted in taking possession of the property by the defendants-first party. In this view the plaintiff has a good cause of action against them (appellants) and we must determine the matter between the parties as they are before us. Whether the decree which may be passed in this suit will be binding upon any other person who may have acquired any interest in the property from the appellant is a matter which does not concern us. In their written statement the defendants first party never asserted that they are not connected with the property in dispute. They allowed the case to proceed before the lower Court and have filed an appeal before this Court. The question should, therefore, be determined and we overrule the contention of the appellants.

I now come to the defence raised by the defendants first party, the representatives of the original mortigagors. I will only deal with such of them as have been pressed before us in the appeal. The learned advocate for the appellants Mr. Abani Bhushan Mukharji has raised the following points: (1) that the plaintiff purchased merely the right to sue and not an existing right in immoveable property, and, therefore, the sale to him by the heirs of Gopi Lal is invalid; (2) that no sale certificate having been obtained, there is no evidence of title to the properties sold; and the other evidence which is available is not admissible in evidence. The sale can only be proved by the sale certificate itself and no decree for possession can be passed in its absence; (3) that the sale is not binding upon defendants nos. 7 and 8 of the first party, namely, Babu Jharkhandi Prasad Singh and Babu Jadunandan Prasad Singh, who were not parties to the original mortgage suit no. 407 of 1903; (4) that the suit is barred by limitation being governed by Article 178 of the Limitation Act; (5) that the suit is barred by section 47 of the Civil Procedure Code.

As to the first point there is no force in the contention. Section 65 of the Civil Procedure Code is explicit and says that when a sale of an immoveable property has become absolute the title of the auction-purchaser shall commence from the date of the sale. In this case the sale became absolute and the order of the Court making the sale absolute was confirmed by this Court. By the sale a right in the property sold was acquired by Babu Gopi Lal, the decree-holder auction-purchaser, and the plaintiff as the representative in interest of Gopi Lal, acquired a subsisting right in the property. A plea was taken before the lower Court that under the terms of the sale deeds (Exhibits 2, 2a, 2b) the plaintiffs had not acquired any right as they had not paid the consideration money to their vendors, the heirs of Babu Gopi Lal, This is, however, a matter between the plaintiff and the defendants third party. In their written statements the defendants third party explicitly stated that title had passed to the plaintiff. The question of payment and non-payment of the consideration money is a matter between them inter se, and, in my opinion, it cannot be raised by the defendants first party. The learned Lower Court has relied upon Nilmadhab Parhi v. Hara Prashad Parhi and Jagdip Sahay v. Sonu Lal for the authority that the execution of a sale deed passes title to the vendee unless there is a contract to the contrary between the parties. I agree with the findings of the learned lower Court and hold this point against the appellants. These sale deeds are not of a nature which can be held to be invalid on the ground of public policy as speculative transfers by way of gambling in litigation. No doubt a part of the consideration is dependent upon the result of the suit but this does not to my mind make the transaction bad as opposed to public policy. This was the view taken by the Judicial Committee of the Privy Council in Bhagwat Dayal Singh v. Debi Dayal Sahu. The property has been sold for its full value and the consideration dependent upon the result of the suit is only about a third of it. The transaction is not a gamble and not invalid. The right sold was the vendor's interest in the property acquired by the sale in execution and not a mere right to sue.

As to the second point raised by the learned advocate it is again enough to refer to the provisions of Section 65 of the Civil Procedure Code. It says that where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from, the time when the sale becomes absolute. It is clear that the title of the auction-purchaser is derived from the sale and not from the sale certificate. It accrues on the sale becoming absolute but takes effect from the date of sale itself. The sale certificate is merely evidence of title of the auction-purchaser and not the title deed in the sense that the title is conveyed or created by it. The word “sale certificate” itself denotes that it is only a certificate by the Court that the auction-purchaser has purchased the property. No provision of law has been placed before us to show that the title of the auction-purchaser is derived from the sale certificate. The learned advocate has relied upon Vishnu Shankar Joshi v. Yusuf Nur Mahamad. The case does not appear to be in point. There the dispute was as regards two sales held by two different Courts. One of them was not confirmed at all. The main question to be decided was which of these two sales was to prevail and the learned Judges, if I may say so, rightly held that one of the sales not having been confirmed could not prevail. No doubt they did refer to the sale certificate also, but, the sale not having been confirmed, the question of sale certificate was immaterial. On the other hand the learned advocate for the respondent has referred us to the case of Tantadhari Singh v. Sundar Lal Missir where Mookerjee, J. observed as follows:— “It is settled law that, when a person has purchased immoveable property at an execution sale, he can establish his title by evidence independent of the sale certificate * * * We agree in this view of the law, and hold that the Subordinate Judge ought not to have decided against the plaintiffs upon the question of title, merely because they had failed to produce their sale certificate.” Mookerjee, J., in dealing with the effect of non-production of the sale certificate, referred to the observation of Chandravarkar, J. in Narayan Bhagwan Gandhi v. Shamrao Luxuman and a decision of a Full Bench of the Allahabad High Court in Jagan Nath v. Baldeo and also to the earlier decisions of the Calcutta High Court in Doorga Narain Sen v. Beney Madhab Mazoomdar and Tara Prasad Maytee v. Nund Kishore Giri and that of the Madras High Court in Velan v. Kumarasami. It is enough if I consider the Full Bench decision of the Allahabad High Court above referred to. In that case it was held that it was not incumbent on a purchaser at an execution sale, which had been duly confirmed, to produce his sale certificate, but it was competent for him to prove his purchase aliunde. The confirmation of the sale in his favour was prima facie evidence of his title to the property, and was sufficient to pass such title to him, of which a certificate, if afterwards obtained by him, would merely be evidence that the property had so passed. The question was again considered by the Calcutta. High Court in the case of Braja Nath Pal v. Joggeswar Bagchi where Mookerjee, J., referring to the case of Tantadhari Singh v. Sundar Lal Missir, observed, that the purchaser of immoveable property at an auction sale can establish his title by evidence independent of the sale certificate, as a sale certificate does not create title, but is merely evidence, of title. The law on this point is so settled that I do not propose, to discuss it at great length. The learned advocate for the appellant referred us to section 91 of the Evidence Act and contended that as Order XXI, rule 94, of the Civil Procedure Code makes it incumbent upon the Court to grant a sale certificate, to the auction-purchaser, no other evidence to prove the sale and the property sold is admissible. I am unable to agree with this. Section 91 of the Evidence. Act prescribes that

“…………………in all cases in which any matter is required by law to be reduced to the form of a document, no evidence, shall, be given in proof………………of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”

In his case there is no matter which is required by law to be reduced in the form of a document. The sale is held under the order of the Court and there are records of these orders in the order-sheet which has been produced. On these grounds I hold this point against the appellants.

The third point refers to the effect of the decree and the sale against defendants nos. 7 and 8, Babu Jharkhandi Prasad Singh and Babu Jadunandan Prasad Singh. They are the sons of one of the original mortgagors, Babu Sant Prasad Singh. The plaint and the decree in the mortgage suit shows that one of the minor sons of Babu Sant Prasad Singh was named therein as Panchu Singh. The plaintiff's contention is that Panchu was another name of defendant no. 7, Jharkhandi Prasad Singh. This is supported by the judgment and the decree of the High Court of Calcutta in the mortgage suit (Exhibits 11 and 15). The learned Lower Court has held it as a fact that Panchu was another name of Jharkhandi Prasad who was party to the suit and described therein as son of Babu Sant Prasad. It has not been shown that Babu Sant Prasad had another son named Panchu. I, therefore, agree with the finding of the learned lower Court that Jharkhandi Singh is an alias of Panchu Singh who was a party to the original mortgage suit. There is no doubt that Babu Jadunandan Prasad Singh was not a party to the mortgage suit. The case of the plaintiff in this respect is that he was not born at the time of the institution of the suit. I do not think so. It appears that one Ambica Prasad Singh, brother of Babu Jadunandan Prasad Singh, was a party to the suit and it is asserted on behalf of the appellant and is not strenuously disputed by the plaintiffs that Ambica who was a party to the original mortgage suit was a younger brother of Babu Jadunandan Prasad Singh. If he was born at the time of the institution of the suit Babu Jadunandan Prasad Singh, who was older, must have been born before the institution of the suit. There is no doubt the was left out from the original suit, but this will not in any way help the appellant. The omission to sue a, minor member of a joint family, if the interest of the family was properly looked after in the suit, will not in any way affect the sale held in execution of the decree passed in the suit, vide Nanomi Babuasin v. Modhun Mohun and Jagdish Narayan Prashad Singh v. Manmatha Nath Dey, relied upon by the learned Lower Court. See also Sheo Shanker Ram v. Jaddo Kunwar and Raja Raghunandan Prasad Singh v. Kumar Ghananand Singh. The plaint in the mortgage suit shows that Babu Jagdip Narayan Singh and Babu Sant Prasad Singh, the mortgagors, were sued as Kartas and managers of the joint Hindu family and there are large number of cases of this Court showing that when a suit is brought against a Karta of a joint Hindu family in his representative capacity, the suit will not fail for non-joinder of other members of the family. The defendant does not impugn the debt or the mortgage and the utmost that he can claim is that he has still the equity of redemption subsisting in him. The amount that he will now have to pay in order to redeem will far exceed the value of the properties, and his learned Advocate did not express his readiness to avail himself of this right when it was pointed out to him that this was all he could get. On these grounds I would decide this point also against the appellants.

Before I come to the question of limitation and the applicability of section 47 of the Civil Procedure Code I would like to dispose of, in passing, one other defence of the appellants raised before the lower Court which, though referred to by the learned Advocate, has not been seriously pressed. In paragraph 8 of the written statement of defendant no. 1 it is stated that according to the terms of the petition filed by Babu Gopi Lal on 30th May, 1914, the sum of Rs. 20,000 was paid to him and he gave up his right under the sale and did not, therefore, take out the sale certificate or delivery of possession. I have referred to this petition of 30th May, 1914. It was to the effect that if the judgment-debtors did not put in petition for setting aside the sale, and did not raise any objection to it, the decree-holder auction-purchaser would return the property to them on payment of Rs. 20,000 only. The learned lower Court has disbelieved the payment of Rs. 20,000 by the defendant first party, and I have no hesitation in accepting this finding. First of all the offer was conditional to the judgment-debtors not raising any objection to the sale. In fact objections were raised, application for setting aside the sale was filed and it was fought up to this Court. It is unbelievable that after fighting to the bitter end the decree-holder auction-purchaser would have given up the property so easily on receipt of Rs. 20,000 only. Then it is further unreasonable to believe that the judgment-debtor actually paid Rs. 20,000 to the decree-holder auction-purchaser and took no document from him or did not insist on the filing of some sort of petition before the Court. This point, though urged by Mr. Abani Bhushan Mukharji, has not, as I said, been strenuously pressed by him, and I see no force in it, and, therefore, decide this point also against the appellants.

I now come to the most important point in the case, namely, the question of limitation and the applicability of section 47 of the Civil Procedure Code. The importance of the applicability of section 47 of the Civil Procedure Code is only in so far as it effects the question of limitation. Under the present Code the question whether a particular relief can be obtained by an application under section 47 of the Code of Civil Procedure or by a separate suit is unless the question of limitation comes in, of academic interest only. Now the Courts are empowered to treat a petition under section 47 of the Civil Procedure Code as a plaint and vice versa. Therefore, had this suit been brought within three years of the date of purchase, the question would have been of no practical importance. But it has been instituted long after the expiry of three years and just before the expiry of 12 years. The question is, whether the decree-holder auction-purchaser can bring a suit for recovery of possession of the property purchased at an auction sale within twelve years of the sale as provided in Article 138 of the Limitation Act, or his only remedy is by an application for delivery of possession to the executing Court for which the period of limitation prescribed is three years only? There was divergence of judicial pronouncements on this question. We were referred to the Full Bench decision of this Court in the case of Haji Abdul Gani v. Raja Ram. There it was held that an application for delivery of possession under Order XXI, rule 95, of the Civil Procedure Code does not relate to the execution, discharge or satisfaction of the decree and, therefore, an order under that section was not appealable. It practically held that section 47 of the Civil Procedure Code does not apply to an application for delivery of possession. That decision was based on the cursus curiae of the Calcutta High Court. Since then the Calcutta High Court in the case of Koilash Chandra Tarafdar v. Gopal Chandra Poddar has held that the decree-holder auction-purchaser applying for possession under Order XXI, rule 95, comes within the provision of section 47 of the Civil Procedure Code as it was a question between the parties to the suit and was a proceeding relating to the execution, discharge or satisfaction of the decree. It is obvious that if the delivery of possession to the decree-holder auction-purchaser comes within the purview of section 47 of the Civil Procedure Code, a separate suit will be barred and the only remedy of the decree-holder will be by way of an application for which as I have said the period of limitation is three years. We felt some doubt as to the correctness of the decision of the Full Bench of this Court in Haji Abdul Gani v. Raja Ram and with the consent of the Hon'ble the Chief Justice by our order, dated the 5th of December, 1930, we referred under rules 1 and 6 of Chapter V of the Rules of this Court the following question of law for decision by a specially constituted Bench:

“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 Civil Procedure Code; 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 the party to the suit, and 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.’”

The reference was heard by a Bench of this Court consisting of Sir Courtney Terrell, C.J, Sir Jwala Prasad, Ross, Wort and Kulwant Sahay, JJ. Their judgment was delivered on the 21st of April, 1931, and the question of law referred by us was answered in the negative. It has been held that the suit instituted by decree-holder auction-purchaser or his representative in interest for recovery of possession of the property purchased in execution of the decree is not barred by the provisions of section 47 of the Civil Procedure Code. It follows that the suit is maintainable and the period of limitation is twelve years under Article 138 of the Limitation Act. The suit is, therefore, not barred either by the provisions of section 47 of the Civil Procedure Code or by, Article 138 of the Limitation Act.

The result is that the appeal is dismissed with costs.

Kulwant Sahay, J.:— I agree.