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Report No. 27

III. Position after 1956 amendment

There have not been many cases directly dealing with the 1956 amendment. But a similar amendment was made in U.P. and it would be of interest to note that the Allababad High Court has observed19, that "that does not settle the matter" and has hold that (i) the question of possession is one between the purchaser and the court, not one "between the parties" and (ii) the question has nothing to do with execution etc. (In that case, the executing court had ordered delivery of possession to the auction-purchaser; an appeal from that order was held not maintainable, as the order could not to be treated as one passed under section 47). On the other hand, it has been held by the Madhya Pradesh High Court20, dissenting from the Allahabad view, that after the 1956 amendment, a dispute regarding possession to be given to a stranger auction-purchaser is one "relating to execution" and falls under section 47.

To settle the position, the following changes have been proposed:

(i) Section 47, Explanation 1 (existing) is confined to a plaintiff whose suit or a defendant against whom a suit has been dismissed. Portion relating to auction-purchaser is transferred to another. Explanation-See below.

(ii) Auction-purchasers are dealt with separately in another Explanation; and, in view of the conflict of decisions on the point whether a claim for possession by an auction-purchaser is or is not a question falling under section 47, a specific clarification has been made on that point.

1. Savlaram v. Vishwa Nath, AIR 1945 Born 386 (Macklin and Lokur JJ.).

2. Ganpathy v. Krishnarnachariar, 45 IA 54: AIR 1917 PC 121: ILR 41 Mad 403 (Sir John Edge).

3. See the Allahabad cases referred to in Suraj v. Gulab, AIR 1955 All 49 (51) (FB).

4. See Sardar Mal v. Kartar Singh, AIR 1939 Lah 211 and the cases cited therein.

5. Kailash Chandra v. Copal Chandra, ILR 53 Cal 781: AIR 1926 Cal 798 (FB); Also see Debi Prasad v. Satish Chandra, AIR 1944 Cal 328 (Rau and Biswas JJ.).

6. Veyindra Muthu v. Maya Nadan, AIR 1924 Mad 324 (FB).

7. See Ram Kumar v. Ram Charon, AIR 1930 Pat 311 (Macpherson and FazI Ali JJ.), and cases referred to therein.

8. See Bhagwati v. Banwari, ILR 31 All 82 (FB) and Ram Kumar v. Ram Charit, AIR 1930 Pat 311 (313).

9. See in Annamalai v. Ramswami, AIR 1941 Mad 161 (169) (FB) (Reviewed case-law).

10. See Varalakshmamma v. Jannayya, AIR 1943 Mad 318 (321).

11. See case-law discussed in Krishna lyer v. Subramaniam, AIR 1939 Mad 369 (SB).

12. Kailash Chandra v. Gopal Chandra, AIR 1926 Cal 798 (FB); Debi Prasad v. Satish, AIR 1944 Cal 328.

13. Varalakshmamma v. Jannayya, AIR 1943 Mad 318.

14. Hargovind v. Bhudar, AIR 1924 Born 429: 448 Born 550 (FB) (Mcleod CJ. Shah and Crump JJ.).

15. Savlaram v. Vishwa Nath, AIR 1945 Born 386 (Macklin and Lokur JJ.).

16. Hari Kishan v. Radha Kishan, AIR 1957 All 251 (252) (Desai and Beg JJ.).

17. Ramautar v. Jagrani Bai, AIR 1956 Nag 81 (83), para. 13.

18. Annamalai v. Ramaswami, ILR 1941 Mad 438: AIR 1941 Mad 161 (169-170) (Full Bench of 5 Judges).

19. Hari Kishan v. Radha Kishan, AIR 1957 All 251 (252) (Desai and Beg. JJ.).

20. Wahidulla Khan v. Ramkishan, 1962 MPLJ Notes 8 (Yearly Digest 1962, Col 201.)

Code of Civil Procedure, 1908 Back

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