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Report No. 27

I. Case-law before 1956 amendment

Some of the cases make a distinction between-

(a) cases where the auction-purchaser is the decree-holder, and

(b) other cases.

Further, some of the decisions hold, that an application for possession is a part of execution and therefore involves a question relating to "execution, discharge or satisfaction" of a decree; others take a different view. Thus, four points have to be considered.

(a) (i) Is a decree-holder auction-purchaser a "party" to the suit within the meaning of section 47?

(ii) Is a stranger auction-purchaser a "party" to the suit?

(b) (i) If a decree-holder is a "party", is the delivery of possession to him a question between the parties and "relating to execution" etc.?

(ii) If a stranger auction-purchaser is a "party", is the delivery of possession to him a question between the parties and relating to "execution" etc.?

On the question (a) (i) above, there has been some controversy. In one case1, the court observed, that the view that he is not a party to the suit "must perhaps be regarded as no longer tenable" in view of the Privy Council decision in 45 Indian Appeals 542, but the court also observed, that "however that may be", in the particular case before the court all the conditions of the section were not satisfied. On the other hand, there are decisions to the effect that even a decree-holder auction-purchaser applying for delivery of possession is not a party3-4.

The Calcutta view is that he is a party5. The Madras view is that he is a party6.

Again, as regards (a)(ii) above-stranger auction-purchaser-there has been a conflict7. One view is, that he is a representative of the decree-holder. Another view is, that he is a representative of the judgment-debtor. A third view is, that he represents both8-9.

On the point (b)(i)-whether a decree-holder auction-purchaser's application for possession is a question regarding "execution", etc.-there is difference of opinion.

One view is, that the matter is one relating to the execution of the decree110-11. On this reasoning, a separate suit "by him would be barred12-13. Another view is that once the sale is confirmed, nothing further remains to be done towards "execution", etc., and the question of delivery to the auction-purchaser, even where he is the decree-holder, is not a question of "execution". The reasoning behind this is, that the decree-holder seeks possession not "in execution of his decree" but by virtue of a title acquired as purchaser14, and that unless the words "relating to" are unduly extended, it is not possible to hold that the question involved in giving possession is one relating to execution; the decree is satisfied not by possession but by sale15.

As regards (b)(ii) above-stranger auction-purchasers-one view is that a question for delivery of possession between him and the judgment-debtor is not one relating to execution, etc.16 The reasoning is that a decree is executed and discharged or satisfied when the property is put to auction, and sold and somebody deposits the price and it is paid to the decree-holder. On the other hand, the view has been taken that such a dispute relates to execution17.



Code of Civil Procedure, 1908 Back




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