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Sasi Bhusan Mookerjee And Anr. v. Radha Nath Bose Opposite Party.
Structured Summary of the Provided Opinion
Factual and Procedural Background
The sequence of events begins with a mortgage decree obtained by Krishnadhan Mookerjee against Badhanath Bose on 25 May 1902 (made absolute on 27 November 1902) for Rs. 587. After a partial payment of Rs. 200, the decree-holder executed sale proceedings and purchased the mortgaged property at auction on 5 March 1903 for Rs. 300. The sale was confirmed on 14 April 1903 and the execution application was dismissed as partly satisfied.
Krishnadhan Mookerjee later died and on 21 June 1912 his son Sasi Bhusan Mookerjee applied for a sale certificate asserting he was his father's representative. The sale certificate was ordered (22 November 1912) and delivered (27 November 1912). Sasi Bhusan conveyed the property on 16 February 1913 to Hemangini Dassi for Rs. 300. On 24 April 1913, Sasi Bhusan and Hemangini jointly applied for delivery of possession; the court issued notice to the judgment-debtor and, after service, an order of substitution and a writ of delivery of possession issued on 3 May 1913. Possession was delivered on 10 May 1913 and the matter recorded as disposed on 15 May 1913.
On 30 May 1913 the judgment-debtor, Badhanath Bose, applied for review of the orders of 24 and 26 April and 3 and 15 May 1913, alleging fraud in the execution sale and lack of notice. The Munsif then in office (Nripendra Nath Guha) refused the review on 5 June 1913 as barred by Order 47, Rule 2. Subsequently the judgment-debtor asked the same Munsif to exercise inherent powers under Section 151 of the Code to reconsider the orders. Despite protests by the execution-purchaser and transferee that the matter could not be reopened this way, on 9 September 1913 the Munsif cancelled the earlier order for delivery of possession on the ground that the claimant's application was time-barred.
The execution-purchaser and his transferee sought relief in this Rule to set aside the Munsif's 9 September 1913 order and to restore the 3 May 1913 order for delivery of possession, contending that the later cancellation was made without jurisdiction.
Legal Issues Presented
- Whether the order for delivery of possession made by the Munsif (3 May 1913) fell within the scope of Section 47 of the Civil Procedure Code (i.e., was it an order in execution proceedings that was appealable under Section 96)?
- Whether the successor Munsif (Babu Nripendra Nath Guha) had jurisdiction to recall or cancel the order of his predecessor by invoking the inherent power of the Court under Section 151, particularly when Order 47, Rule 2 forbade review by a successor?
- Whether the use of the Court's inherent powers in this instance was appropriate having regard to the ends of substantial justice and the legal effect of a sale certificate and the purchaser's remedies?
Arguments of the Parties
Execution-purchaser and Transferee (Applicants to this Rule)
- Contended that the Munsif's order of 9 September 1913 cancelling the earlier delivery-of-possession order was made without jurisdiction.
- Protested that the matter could not be reopened by invocation of the Munsif's inherent power under Section 151 after a predecessor had made the order, and that the proper remedy (if any) lay under the Code's provisions applicable to execution.
Judgment-debtor (Respondent in the Rule)
- Raised a preliminary objection that the execution-purchaser had misconceived his remedy and that the order of the Munsif fell within the scope of Section 47, so that the purchaser should have challenged it by appeal to the District Judge under Section 96.
- Alleged the execution sale was fraudulently conducted without notice to the judgment-debtor and later asserted that the applications for the sale certificate and for delivery of possession were time-barred (i.e., barred by limitation).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raghubar v. Jadu Nandan (following Joytara v. Pran Kissen) | Held that whether an order in execution proceedings falls under Section 47 depends on its nature and contents (i.e., whether it decides questions relating to execution, satisfaction or discharge of the decree and whether it arises between parties or their representatives). | Used as the starting point for testing whether the delivery-of-possession order was within Section 47; the Court applied the two-fold test laid down in this authority. |
| Joytara v. Pran Kissen | Followed in Raghubar as part of the principle regarding the character of execution orders for the purpose of Section 47. | Referenced via Raghubar to support the two-fold test on Section 47 applicability. |
| Nana Kumar Roy v. Golam Chandra Dey | Recognition of the distinct capacities of a person as decree-holder and as auction-purchaser; an order under one provision cannot be treated as under another merely because the decree-holder is purchaser. | Invoked to support the proposition that the purchaser's status as decree-holder does not convert a delivery-of-possession question into one between decree-holder and judgment-debtor for Section 47 purposes. |
| Hiralal v. Chandra Kant | Conversely holds that if the question genuinely arises between decree-holder and judgment-debtor it retains that character even if it affects an auction-purchaser who is a stranger to the suit. | Noted to show the limiting principle that substance of the dispute (who are the real parties) controls classification under Section 47. |
| Kishori Mohun v. Chunder Nath | When the purchaser is not the decree-holder, questions arising in proceedings for delivery of possession between purchaser and judgment-debtor do not fall within Section 47. | Relied on to illustrate that delivery-of-possession matters between purchaser and judgment-debtor are generally outside Section 47 when the purchaser is a stranger to the decree-holder. |
| Krishna v. Saravatulla | Supports the position that a purchaser who is not the decree-holder cannot invoke Section 47 for delivery-of-possession matters. | Grouped with Kishori Mohun to support the non-appealability of such orders where purchaser is not decree-holder. |
| Madhusudan v. Gobinda Pria; Sariatoola v. Raj Kumar; Ram Narain v. Bandi Pershad; Hari Charan v. Monmohan; Kashinath v. Uthumansa | Authorities that have taken the view that if the purchaser happens to be the decree-holder, the question of delivery of possession falls within Section 47. | Cited as examples of cases that supported the opposite view — that a decree-holder purchaser brings delivery-of-possession within Section 47 — which the Court considered but found unpersuasive for the present facts. |
| Sadashiv v. Narayan; Kattayat v. Raman | Held that a decree-holder who is an auction-purchaser must obtain delivery of possession by application to the Execution Court and cannot maintain a separate suit against the judgment-debtor. | Cited as instances where the execution route was deemed exclusive; the Court observed these decisions but treated them in the context of the broader line of authority. |
| Bhimal Das v. Ganesha; Mahomed Masraf v. Habil Mia; Jagarnath Marwari v. Kartick Nath | Authorities supporting the contrary view that a decree-holder purchaser is in the same position as any other purchaser and that delivery-of-possession questions are not necessarily within Section 47. | Grouped as supporting the Court's ultimate conclusion that the order in the present case did not fall within Section 47. |
| Kattayat v. Raman and Sandhu v. Hussain | Instances where courts adopted the pro-Section 47 conclusion reluctantly, indicating prior reluctance or doubt. | Noted by the Court to show that even among authorities supporting Section 47 applicability there was judicial hesitation. |
| Bhagwati v. Bauman Lal (Full Bench, Allahabad High Court) | Full Bench review concluding that a decree-holder who purchases at a sale held in execution is in the same position as any other purchaser at such a sale. | Relied upon to affirm the principle that a decree-holder purchaser should generally be treated like any other purchaser for the purposes of delivery of possession and Section 47 analysis; used to support the Court's view that the impugned order did not fall within Section 47. |
| Hukum Chand v. Kamalanand | Explained the principles regulating the exercise of inherent power (Section 151): the Code binds Courts where it speaks, but inherent power fills gaps only where Code does not deal; inherent power cannot be used to override express Code provisions. | Applied as authoritative guidance that Section 151 cannot be used to do what the Code expressly prohibits (for example, reverse a bar created by Order 47, Rule 2). |
| Hurro Chunder v. Shoorodhonee; Panchanan v. Dwarkanath | Stated the duty of a judge to apply the Code's provisions to cases within their scope and to the consequences that naturally flow from them; the Code is not exhaustive but must be observed where it deals with a subject. | Invoked to support the proposition that it would be a patent misapplication of Section 151 for a Court to assume jurisdiction to grant relief where the Code expressly forbids such relief. |
| Tantardhari v. Sundarlal; Khobhari v. Ram Prosad; Brajanath v. Joggeswar | Established that a sale certificate issued in execution proceedings is merely evidence of title and does not itself create title. | Used by the Court to demonstrate that even without the sale certificate, a purchaser could, by ordinary suit within the statutory period, establish title independently — a key point weighing against exercise of inherent power to unsettle possession. |
Court's Reasoning and Analysis
The Court conducted a two-stage analysis drawn from established authorities. First, it tested whether the order of delivery of possession (3 May 1913) was an order "relating to the execution, satisfaction or discharge of the decree" and hence within Section 47. The Court concluded that the mortgage decree had been executed — the sale had been held, confirmed on 14 April 1903, and the decree declared satisfied in part — and that the subsequent application for delivery of possession could not affect the execution or satisfaction of the decree. Granting or refusing delivery of possession would not validate or invalidate the confirmed sale or the part-satisfaction of the decree. On that ground the Court held it was impossible to treat the order for delivery of possession as an order relating to execution, discharge or satisfaction of the decree.
The Court proceeded to the second limb of the Raghubar test: whether the question arising on the application for delivery of possession was a question "between the parties to the mortgage suit or their representatives." The Court emphasized the distinct capacities of the individual who may be both decree-holder and purchaser, noting precedent that these capacities are "radically distinct." It rejected the contention that because the purchaser happened to be the decree-holder the dispute could be equated with a dispute between decree-holder and judgment-debtor for Section 47 purposes.
After reviewing a broad array of authorities (some supporting and some opposing treatise), the Court adopted the view that the order in the present case did not fall within Section 47 and therefore was not open to appeal to the District Judge under Section 96.
Turning to the question whether the successor Munsif could recall the prior order by invoking inherent power under Section 151, the Court observed that Order 47, Rule 2 explicitly barred review of a predecessor's order by a successor. The Munsif properly dismissed a review application on that basis on 5 June 1913. The subsequent decision of the same Munsif to cancel the predecessor's order by using Section 151 was held to be impermissible: a Court must not exercise inherent power to grant a review where the Code expressly forbids such a review.
The Court further examined the merits and utility of invoking inherent power in this matter. The confirmed sale occurred in 1903; the purchaser had been placed in possession after notice; no steps had been taken to impeach or set aside the sale despite later allegations of fraud. The Court relied on authorities establishing that a sale certificate is only evidence of title and does not create title, and noted that the purchaser could, within the statutory period for actions to recover possession or declare title, bring an ordinary suit to establish his title independently of the sale certificate. Forcing the purchaser to litigate necessity through such a suit (if the Munsif's cancellation stood) would impose a needless and futile burden when the purchaser could establish title by ordinary proceedings within prescribed periods. The Court concluded that the exercise of inherent power to displace the prior order would not attain the ends of substantial justice in the circumstances.
Holding and Implications
Holding: The Court made the Rule absolute and thereby set aside the Munsif's order of 9 September 1913. The Court restored the order of 3 May 1913 for delivery of possession and directed that the purchaser be replaced in possession in execution of the restored order.
Direct consequences and relief ordered:
- The 9 September 1913 cancellation order by the Munsif was discharged.
- The 3 May 1913 order for substitution and writ of delivery of possession was restored and to be executed; the purchaser to be replaced in possession accordingly.
- The purchaser was awarded costs throughout these proceedings before this Court, and the hearing fee in this Court was assessed at five gold mohurs.
Implications: The decision's effect, as set out in the opinion, is limited to restoring the earlier order and awarding costs and fees in favour of the purchaser. The opinion does not announce a novel, standalone rule of law beyond the application of existing authorities and the Code: it applies established principles concerning the scope of Section 47, the limited role of Section 151 where the Code speaks expressly, and the evidentiary character of a sale certificate.
Outcome: Rule made absolute.
We are invited in this Rule to set aside an order by which the Court of first instance has, under sec. 151 of the Civil Procedure Code, 1908, recalled an order previously made for delivery of possession of immoveable property to a purchaser at an execution sale. The events, which have led up to this order, are matters of record and may be briefly recited. On the 25th May 1902, one. Krishnadhan Mookerjee obtained a mortgage decree against Badhanath Bose, now Opposite Party in this Rule. The decree was for Rs. 587 and was made absolute on the 27th November 1902. A payment of Rs. 200 was made in Dart-satisfaction of the decree, and the decree-holder took out execution for the balance. The mortgaged property was sold on the 5th March 1903, and was purchased by the decree-holder for Rs. 300. The sale was confirmed on the 14th April 1903 and the application for execution was dismissed on part-satisfaction, as the decree-holder took no further steps. On the 21st June 1912, Sasi Bhusan Mookerjee, now Petitioner before this Court, applied to the Court for a certificate of sale. He alleged that his father Krishnadhan Mookerjee, who had obtained the mortgage decree and purchased the property in execution, had died and had left him as his sole representative. On the 22nd November 1912 the Munsif, Babu Nripendra Nath Guha, ordered the issue of the sale certificate, and five days later the document, duly drawn up and signed, was made over to the Applicant. On the 16th February 1913, Sasi Bhusan Mookerjee conveyed the property to Hemangini Dassi, for a consideration of Rs. 300. On the 24th April 1913, Sasi Bhusan Mookerjee and Hemangini Dassi made a joint application for delivery of possession of the land sold; the application was jointly made, obviously with a view to avoid any question as to the reality of the conveyance. On the same date, the Court called for the record, and two days later Babu Nripendra Nath Guha, Munsif, ordered notice to issue on the judgment-debtor to show cause why the Petitioner should not be substituted in the record in place of the auction-purchaser Krishnadhan Mookerjee. Notice was issued accordingly; and on the 3rd May 1913, Babu Saroj Kanta Banerjee, who had succeeded Babu Nripendra Nath Guha as Munsif, recorded in the order-sheet that notice had been served, made an order for substitution and directed writ of delivery of possession to issue. On the 10th May 1913 the writ was executed, and possession was delivered to the Petitioners. On the 15th May, an enquiry was made in the order-sheet that possession had been delivered and that the case had been disposed of. On the 30th May 1913, Badha Nath Bose, the judgment-debtor, applied for review of the orders of the 24th and 26th April and 3rd and 15th May 1913. This application was made to Babu Nripendra Nath Guha, Munsif, who had returned to the station on transfer of Babu Saroj Kanta Banerjee. The application for review attacked the orders as fraudulently obtained on the basis of a fraudulent execution sale brought about by the decree-holder without notice to the judgment-debtor. On the 5th June 1913, Babu Nripendra Nath Guha refused the application for review on the ground that in view of Or. 47, r. 2, of the Code of 1908, he was not competent to entertain an application for review of orders made by his predecessor. Two days later, the judgment-debtor applied to Babu Nripendra Nath Guha to consider the propriety of the orders of his predecessor in the exercise of his inherent powers under sec. 151 of the Code. The execution-purchaser and his transferee protested that the matter could not be re-opened in this way. No heed was paid to this objection, and on the 9th September 1913, Babu Nripendra Nath Guha cancelled the order for delivery of possession made by his predecessor, on the ground that the application was manifestly barred by limitation, as it had not been presented within three years of the date of confirmation of the sale. We are now invited by the execution-purchaser and his transferee to hold that the last order of Babu Nripendra Nath Guha, by which he has cancelled the order of his predecessor for delivery of possession, was made without jurisdiction. A preliminary objection has been taken on behalf of the judgment-debtor that the execution-purchaser has misconceived his remedy, that the order of the Munsif, whether rightly or wrongly made, falls within the scope of sec. 47 of the Code, and that it should have been challenged, if the purchaser was so advised, by way of an appeal to the District Judge. We are of opinion that the order of the Munsif was not open to appeal and that the preliminary objection must be overruled.
It was observed by this Court in the case of Raghubar v. Jadu Nandan(1) following Joytara v. Pran Kissen(2) that the answer to the question, whether an order in execution proceedings is within the scope of sec. 47, depends upon its nature and contents. If it decides a question relating to the execution, satisfaction or discharge of the decree, and if the decision has been given between the parties to the suit or their representatives-in-interest, the order falls within the scone of sec. 47, is, consequently, a decree within the meaning of sec. 2, and is open to appeal under sec. 96. Let us test the order in the present case from this two-fold point of view. Does it decide a question relating to the execution, satisfaction or discharge of a mortgage decree? The answer must plainly be in the negative. The mortgage decree has been executed; the sale has taken place and has become absolute. The decree has been declared to have been satisfied in part. The position as it stood on the 14th April 1903, when the sale was confirmed and the application for execution was dismissed on part-satisfaction, 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. If the application was granted, it could not give greater validity to the order for confirmation of sale than what it possessed. On the other hand, if the application for delivery of possession was refused, it could not invalidate the sale or nullify the part-satisfaction of the decree. In our opinion, it is impossible to hold that the order for delivery of possession to the purchaser in this case is an order relating to the execution, discharge or satisfaction of the decree. But let us assume that, by some stretch of language, the order for delivery of possession to the purchaser may be deemed an order relating to execution of the decree. The point still remains, whether the question, which arises on the application for delivery of possession, arises between the parties to the mortgage suit or their representatives. It is argued that because the purchaser happened to be the decree-holder, the question, which arises between the purchaser and the judgment-debtor, may be deemed to arise between the decree-holder and the judgment-debtor. This contention is clearly fallacious, for the two capacities of the Petitioner, namely, that of decree-holder and of purchaser, are radically distinct. This distinction was recognised in the case of Nana Kumar Roy v. Golam Chandra Dey(3), where it was held that an order under sec. 312 of the Code of 1882 for reversal of an execution sale cannot be treated as an order under sec. 244, because the decree-holder happens to be the auction-purchaser. It was conversely held in Hiralal v. Chandra Kant(4) that if the question really arises between the decree-holder and the judgment-debtor, it does not lose that character merely because it also affects the auction-purchaser who is a stranger to the suit. It is plain that the judgment-debtor cannot take advantage of the circumstance, that the decree-holder is the auction-purchaser with a view to make the question one under sec. 47, any more than the execution-purchaser can rely upon his decree-holder character for a similar purpose. It is well-settled that when the purchaser is not the decree-holder, a question which may arise in the proceedings for delivery of possession between him and the judgment-debtor does not fall within the scope of sec. 47: Kishori Mohun v. Chunder Nath(5) and Krishna v. Saravatulla(6). When, however, the purchaser happens to be the decree-holder, the view has sometimes been taken that the question of delivery of possession falls within the scope of sec. 47: Madhusudan v. Gobinda Pria(7), Sariatoola v. Raj Kumar(8), Ram Narain v. Bandi Pershad(9), Hari Charan v. Monmohan(10) and Kashinath v. Uthumansa(11). This view has been carried to its logical conclusion, and it has been maintained in Sadashiv v. Narayan(12) and Kattayat v. Raman(13) that a decree-holder auction-purchaser must obtain delivery of possession by an application to the Execution Court and cannot maintain a suit against the judgment-debtor for recovery of possession. The contrary view is supported by the cases of Bhimal Das v. Ganesha(14), Mahomed Masraf v. Habil Mia(15) and Jagarnath Marwari v. Kartick Nath(16), and it is worthy of note that in some of the cases where the view first set out has been maintained, the Court has adopted the conclusion with reluctance and hesitation because it felt bound by previous decisions: Kattayat v. Raman and Sandhu v. Hussain(17). The cases were elaborately reviewed by a Full Bench of the Allahabad High Court in Bhagwati v. Bauman Lal(18) and the principle was affirmed that a decree-holder, whether holding a decree for sale under a mortgage or a simple money decree, who purchases at a sale held in execution of such decree property belonging to his judgment-debtor, is in the same position as would be any other purchaser at an auction sale held in execution of such decree. We are of opinion that the order we are called upon to consider in the present case does not fall within the scope of sec. 47, and could not have been challenged by way of an appeal to the District Judge. We must consequently examine whether the Munsif was competent to recall the order of his predecessor.
R. 2 of Or. 47 of the Code makes it plain that the order of the 3rd May 1913 for delivery of possession made by Babu Saroj Ranjan Banerjee could not have been reviewed by his successor Babu Nripendra Nath Guha and the latter officer took this view very properly when he dismissed the application for review on the 5th June 1913. But he subsequently yielded to the invitation of the judgment-debtor to grant him relief in the exercise of his inherent power, which he was forbidden to grant by the express provisions of r. 2 of Or. 47. The principles which regulate the exercise of inherent power by a Court were explained in the case of Hukum Chand v. Kamalanand(19). It was pointed out that the Code of Civil Procedure binds all Courts so far as it goes; but the Code is not exhaustive, and in matters with which it does not deal, the Court will exercise its inherent power to do that justice between the parties which is warranted under the circumstances and which the necessities of the case require. On any point specifically dealt with by the Code, the Court cannot disregard the letter of the enactment according to its true construction, though, as the Legislature cannot anticipate and make express provisions to cover all possible contingencies, it is the duty of a Judge to apply the provisions of the law not only to what appears to be regulated expressly thereby, but also to all cases to which just application of them may be made and which appears to be comprehended either within the express sense of the law or within the consequences that may be gathered from it: Hurro Chunder v. Shoorodhonee(20) and Panchanan v. Dwarkanath(21). It would in our opinion be a patent misapplication by a Court of sec. 151, if it were in the exercise of its inherent power to assume jurisdiction to grant a review where it has been expressly forbidden by the Legislature to entertain such application. There is, however, a further objection to the exercise of the inherent power of the Court in the present case. It is well-settled that the inherent power of a Court can be invoked, only for the attainment of the ends of substantial justice, for the administration of which alone Courts exist. Now, what are the merits of the case before us? The mort-gage-decree-holder purchased the property so far back as the 5th March 1903 and the sale was confirmed on the 14th April 1903. Notwithstanding the fact that the judgment-debtor had lost his interest in the property by the execution sale, he continued in possession. The decree-holder obtained a sale certificate and was placed in possession after notice to the judgment-debtor. Though the sale was later on alleged to be fraudulent, no steps have been taken to impeach the sale and to have it set aside. Objection is subsequently taken that the application for issue of sale certificate and for delivery of possession were both barred by limitation. We need not investigate whether this objection is or is not well-founded in law; we assume that the objection is well-founded. But it is plain, as repeatedly held by this Court, that the sale certificate is merely evidence of title; it does not create title: Tantardhari v. Sundarlal(22), Khobhari v. Ram Prosad(23) and Brajanath v. Joggeswar(24). Consequently if the execution-purchaser were to sue the judgment-debtor for declaration of title and for recovery of possession at any time within 12 years from the 14th April 1903, when the sale was confirmed, and the title vested in the purchaser under sec. 316 of the Code of 1882, there would be no answer to the claim, as the purchaser would be entitled to establish his title by evidence independently of the sale certificate. The effect of the order of the Munsif is that the purchaser would be needlessly driven to a suit for possession to which no defence is Possible on behalf of the judgment-debtor This clearly is not a result for the attainment of which a Court should exercise its inherent power.
The result is that this Rule is made absolute, the order of the 9th September 1913 discharged and that of the 3rd May 1913 restored. The purchaser will be replaced in possession in execution of the order of this Court. He will also be an titled to his costs throughout these proceedings. We assess the hearing fee in this Court at five gold mohurs.
Rule made absolute.
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