Madhusudan Das And A... v. Gobindpria Chowdhran...

The Respondent purchased two jotes at sales in execution of two decrees which he had obtained against Ram Kamal Das for the rent due in respect of them. After obtaining the sale certificates he applied for khas possession as against Ram Kamal's sons who, we must take it, were put on the record as representatives of their deceased father. The sons, resisted the application alleging that they had purchased the whole of one and half of the other jote from their father prior to the rent-suits, that the Respondent had recognised them as tenants and that they were not bound by the decrees to which they were not parties. In support of their contention they put in the kobalas by which they had purchased the jotes and some other documentary evidence. Both Courts considered that the questions raised could only be decided in a regular suit to be brought by one or other of the parties, and that they could only be decided under sec. 244 of the Civil Procedure Code. The Munsif, holding that it was for the Respondent to bring such a suit, declined to give him anything more than symbolical possession. The District Judge on the Respondent's appeal held that it was for the Appellants, Ram Kamal's sons, to bring such a suit, and that in the meantime khas possession must be given to the Respondent. These appeals are preferred against this order of the District Judge.

Neither Court has definitely decided the questions raised, but if the case comes under sec. 244, these questions obviously must be decided under that section and not by separate suit. If the case does not come under sec. 244, it is equally obvious that there was no appeal to the District Court and that there is no second appeal to this Court. We must, therefore, determine whether sec. 244 applies.

It undoubtedly does apply as regards the parties for there is on the one side the Plaintiff, who is the decree-holder and the auction-purchaser, and on the other the representatives of the judgment-debtor. The fact that they claim the jotes not through the judgment-debtor but adversely to him would prevent the operation of sec. 244. Punchanun Bundopadhya v. Rabia Bibi. The Plaintiff is also none the less a party to the suit because he happens to be the auction-purchaser. ??? question raised one relating to the ??? of the decree? That question is whether the jotes sold at the execution sale belonged to the judgment-debtor or to the persons who now represent the judgment-debtor, and from whom it is sought to obtain possession with the aid of the Court. There is also another question involved and that is whether, having regard to the provisions of the Tenancy Act if those provisions apply), the jotes were not properly sold in execution of the decrees obtained against the Appellants' father so as to bind the Appellants even if the jotes do belong to them.

As the Appellants do not claim through or under their father the sale certificate has not the effect of vesting the jotes in the purchaser as against them, but the purchaser is entitled to ask the Court to put him in possession of what he has purchased and, subject to the provisions of secs. 317 and 318, and secs. 328 to 335, relating to resistance to execution, the Court is bound to give him possession of some kind. Proceedings for the delivery of possession, are we think, proceedings in execution of the decree. They undoubtedly are so when the decree is for possession, as the proceedings are necessary in order to give effect to the decree, and any question which arose as to the land which the decree-holder was entitled to get under the decree would certainly be a question relating to the execution of the decree. The matter is so clear when possession has to be given of land which has been sold in execution of a decree. It may be said but the decree is fully executed when ??? others in ??? possession of the ??? questions affecting the ??? decree. They may not affect ??? sense of impeaching the sale, but ??? the law provides for the delivery of possession to the auction-purchasers by proceedings which form a part of the proceedings in connection with the execution of the decree any question arising as to the kind of possession to which he is entitled is, we consider, a question relating to the execution of the decree within the meaning of sec. 244. Here the Respondent, the decree-holder, says the land is in the possession of the Appellants who are the representatives of the judgment-debtor and that he is entitled to get as against them khas possession. The Appellants do not deny that the land is in their actual possession and that they are the representatives of the judgment-debtor, but they say they are not bound by the decree to which they are not parties, and that the land is their own and not that of the person whom they represent. Both as regards the parties and the subject-matter of the dispute the case comes, we consider, under sec. 244 and must be decided under that section and not by a separate suit. If such a suit was brought it would certainly be open to the objection, whatever the Courts may now say, that it was not maintainable.

We hold that an appeal does lie and we set aside the decision of both Courts. The case must go back to the first Court to be dealt with and disposed of under ???

??? remanded.