# HARNANDRAI BADRIDAS v. DEBIDUTT BHAGWATI PRASAD & ORS - **Citation:** [1974] 1 S.C.R. 210 - **Court:** Supreme Court of India - **Decided:** 1973-05-04 - **Bench:** A. N. Grover, K. K. Mathew, A. K. Mukherjea - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harnandrai-badridas-v-debidutt-bhagwati-prasad-ors-6661 - **Pages:** 5 ## Headnote Code of CMI Procedllrc--Order XXI &le 95 IO 102-Whether after an uucn tion sale ill execution of a decree, a decree-holder auction-purchaser can move the e.xeculing Court jor de/irery of vacant possession of an immovable property, In May 1956, One D obtained a money decree against H. In January 1956, T was appointed Receiver in an insolvency proceeding against one G, a partner of the ue1enoant thm in respect of premises No. 99 and 128 Couon Street, Calcutta for the purpose of sel)ing those properties. On April 3, 1958, Mr 1' was also appomLed receiver in execution of the decree obtained by f) for the C sale of the lWO pr~:mises. The properties were put up for sale by auction and K was declared the purchaser of premises No. 128, Cotton Street. K made a deposit oi earnest money. Jhere were various proceedings thereafter but on May 19, 1964, tll~ rece1ver was directed to complete the sale within one month and K was diriJ.ed to pay the balance of tb.e purchase money. The Receiver was directed to execute and register a conveyance on behalf of the judgment-debtors in case of refusal. On June 17, 1964, the ~eceiver executed the conveyance on behalf of the judgment-debtor and the insolvent. ,Jn due course, the Court made an orde.r to deliver up va~ant possession to the auction-purchaser and on D appeal, the appellate Court confirmed the original order. The main coptention of the appellant was that as soon as a r-:ceiver in execution has executed a conveyance 111 ravour of an auction purchaser, the decree stands satisfied and there is an end of the execution proceedings, For delivery of vacant possessiOn of the immovable property he has to file a separate suit to get that possession. Dismissing the appeal and agreeing with the decision of the Calcutta High Court in Kai/ash Chandra' Tarajdar v. Gopa/ Chandra Poddar, l.L,R. 53 Calcutta 781, HELD: (i) If a_confirmation of the sale would finally terminate all questions as to the execution of the decree, it is difficult to appreciate wby the legislature would frame such rules as rules 95 to 102 under order XXJ of the Code of Civil Procedure. The legislature must have thought that the duty of the executing court should not end with the confirmation of the Sale as it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of r. 95 and r. 96 that proceedings for obtaining possession were included in the catena of rules· relating to the execution of the decree", [213G] (ii) Sec. 47 of the Code of Civil Procedure should be construed liberally. If such a construction is put it is difficult to understand why a decree holder who has been a party to the decree will shed_ his character as SJ.ICh party merely upon purchasing the property at the execution sale. Afier all, a ·decree holder purch~~es the property in execution of his decree with the premission of the Court. There is no reason why he should not retain his cllaracter of a party to the suit until the delivery of possession to hiqt ·of the property purchased by him. Having regard to the consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of tire rights purchased and if the judgment-d~btor offers any resis· tance to delivery of possession the questiOn must be one which in our view relates to the execution, discharge and satisfaction of the decree and ari.~es between the parties to the suit [213 HJ Kailash Cha11dra Tara/dar v. Gopal Chandra Podder I.L.R. 53 Calcutta 781 referred to and Ram Singf1 Gopal Sing!; and others v. Abdullah Habilullah J.I..R. 26 lab, 252 over ruled. E F G H IIARNANDRAI V, DEBIDUTT (Mukherjea, /.) ' 211 A CML APPELLATE JURISDICTION: Civil Appeal No. 1323 of 1967. Appeal by certificate from the judgment and order dated April 29. 1966 of the <=;alcutta High Court in Appeal No. 109 of 1965. S. C. Manchanda and V. Maya Krishnan, for the appellant. B. P. Malzeshwari and Suresh S ## Text 210 HARNANDRAI BADRIDAS A v. DEBIDUTT BHAGWATI PRASAD & ORS. May 4, 1973. [A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.] Code of CMI Procedllrc--Order XXI &le 95 IO 102-Whether after an uucn tion sale ill execution of a decree, a decree-holder auction-purchaser can move the e.xeculing Court jor de/irery of vacant possession of an immovable property, In May 1956, One D obtained a money decree against H. In January 1956, T was appointed Receiver in an insolvency proceeding against one G, a partner of the ue1enoant thm in respect of premises No. 99 and 128 Couon Street, Calcutta for the purpose of sel)ing those properties. On April 3, 1958, Mr 1' was also appomLed receiver in execution of the decree obtained by f) for the C sale of the lWO pr~:mises. The properties were put up for sale by auction and K was declared the purchaser of premises No. 128, Cotton Street. K made a deposit oi earnest money. Jhere were various proceedings thereafter but on May 19, 1964, tll~ rece1ver was directed to complete the sale within one month and K was diriJ.ed to pay the balance of tb.e purchase money. The Receiver was directed to execute and register a conveyance on behalf of the judgment-debtors in case of refusal. On June 17, 1964, the ~eceiver executed the conveyance on behalf of the judgment-debtor and the insolvent. ,Jn due course, the Court made an orde.r to deliver up va~ant possession to the auction-purchaser and on D appeal, the appellate Court confirmed the original order. The main coptention of the appellant was that as soon as a r-:ceiver in execution has executed a conveyance 111 ravour of an auction purchaser, the decree stands satisfied and there is an end of the execution proceedings, For delivery of vacant possessiOn of the immovable property he has to file a separate suit to get that possession. Dismissing the appeal and agreeing with the decision of the Calcutta High Court in Kai/ash Chandra' Tarajdar v. Gopa/ Chandra Poddar, l.L,R. 53 Calcutta 781, HELD: (i) If a_confirmation of the sale would finally terminate all questions as to the execution of the decree, it is difficult to appreciate wby the legislature would frame such rules as rules 95 to 102 under order XXJ of the Code of Civil Procedure. The legislature must have thought that the duty of the executing court should not end with the confirmation of the Sale as it is because the legislature thought "that the auction purchaser should have the right of applying for possession under the provisions of r. 95 and r. 96 that proceedings for obtaining possession were included in the catena of rules· relating to the execution of the decree", [213G] (ii) Sec. 47 of the Code of Civil Procedure should be construed liberally. If such a construction is put it is difficult to understand why a decree holder who has been a party to the decree will shed_ his character as SJ.ICh party merely upon purchasing the property at the execution sale. Afier all, a ·decree holder purch~~es the property in execution of his decree with the premission of the Court. There is no reason why he should not retain his cllaracter of a party to the suit until the delivery of possession to hiqt ·of the property purchased by him. Having regard to the consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of tire rights purchased and if the judgment-d~btor offers any resis· tance to delivery of possession the questiOn must be one which in our view relates to the execution, discharge and satisfaction of the decree and ari.~es between the parties to the suit [213 HJ Kailash Cha11dra Tara/dar v. Gopal Chandra Podder I.L.R. 53 Calcutta 781 referred to and Ram Singf1 Gopal Sing!; and others v. Abdullah Habilullah J.I..R. 26 lab, 252 over ruled. E F G H IIARNANDRAI V, DEBIDUTT (Mukherjea, /.) ' 211 A CML APPELLATE JURISDICTION: Civil Appeal No. 1323 of 1967. Appeal by certificate from the judgment and order dated April 29. 1966 of the <=;alcutta High Court in Appeal No. 109 of 1965. S. C. Manchanda and V. Maya Krishnan, for the appellant. B. P. Malzeshwari and Suresh Seth, for Respondent No. 1_ .. Sharad Manohar and B. P. Maheshwari, for Respondent No. 3. The Judgment of the Court was delivered by . MUKH.ERJEA, J.-This appeal by certificate from a judgment of the Calcutta High Court raises an important question as to. whether after an auction sale in execution of a decree a decree-holder auction·purC · chaser can move the executing court for delivery of vacant .possession of an immovable property or whether he has to file a separate suit to get that possession. The short facts of the case are as follows. In May 1956 one Debidutt Bhagwati Prasad obtained a moneY decree against Harn'andrai Badridas. In January 1959 Mr. S. Tibrewal, a member of the Calcutta Bar was appointed Receiver in dn insolvency proceeding against one Durga Prasad Goinka, a partner of the defendant firm in respect of premises No. 99 and 128 Cotton Street, Calcutta for the· purpose of selling those properties. On 3 April 1958 Mr. Tibrewal was also appointed receiver in execution of the decree obtained by Debidutt Bhagwatj Prasad for the sale of the two premises. On 26 April 1958 the properties were put up to sale by auction and one Kanta D E ( . . J II Prosad Chotaria was declared the purchaser of premises No. 128, Cotton Street for Rs. 52,000/-. Kanta Prasad made a deposit of Rs. 13,000/- as earnest money.··· There were, it appears, various proceedings after this at .the end of which, on 19 May 1964, there WaS an order directing the receiver to complete the sale within one month from that date and Kanta Prosad was directed to pay the balance of ~e purchase money within that time. The receiver was directed to execute and register a conveyance on behalf of the judgment-debtors who were the owners of premises No. 128, Cotton Street in case they tefused to register the same, The purchaser was bY the same order directed to pay interest on the balance of the purchase money from 13 June 1963 to 19 March 1964 in default whereof there was an order not to execute the conveyance. On 17 June 1964 the receiver executed. the conveyance on behalf of the judgment-debtor and the insolvent. · On 19 June 1964 the purchaser through his attorney requested the receiver to make over possession of premises No. 128, Cotton Street On 23 July 1964 the receiver was further requested by the attorney . to make over possession of the premises by the issue of letters of attm;n· men t addressed to each tenant in respect of portions which were ten- ~ ted and to make over vacant possession. Qf that portion of the premises which was in the occupation of the judgment-debtor. to the purchaser. On 17th November 1964 an application was made praying interalia for an order upon the judgment-debtor _to deliver vacant possession of .the premises in their occupation to the receiver and also a direction to the receiver to deliver vacant possession of the same to the purchaser. In due course, the court made. an _order in. terms-of :_.:;;;;-:::.-.;::_;...£.~~- SU;;~B COUJtT ltEPOaTS ~ - Z12 al against that order in the appellate co . l1lat peaT«· On ~"-·" Hence this present ann-1 'llrt tho ~ Gtigi.nll order was CODW,......... Yt-..... ·n contention of the appellant. befc;>re the appellate COIU1 The JD3l us is that as soon as a rece1vcr 111 executton has ex • well as before. favour of an auction purchaser the decree stands ~ut?i ::::r::e fs an end of the exe~ution proc~edings so that the ~: tion of the auction-purchaser gett!ng possessiO~ ot t!Ie property is , matter which has nothing to do w1t~ the execution, diSCharge or sati,s. II hu:tion of the decree. Such a questiO? does no~ fall to be dete!ln.intd b the executing court but can be decided onl¥ lD a separate suit. The Y lion that has been raised by .the appell~~t IS one ~hich has formed rsubject matter of 3 long senes Of deCIS_IO_DS Which UDfortWJatClJ hAve followed two divergent strea~s. Ther~ JS o~ the one hand a full bench decision of the Calcutta High Court m Ka.lash Chandra Tarat- C a v. Gopal Chandra Poddar(1) followe~ ?Y the Madras High Court. while on the other hand there IS the deciSion of the Lahore High Q>urt in Rom Singh Gopa/ Singh and Anr, v. Abdullah Habibullah(') which bas OO;n followed in various full bench decisions by the Allahibad High Court and also by the Patna High Court and the BombaJ High Caurt. In the present case, the Calcu ta High Court bas followed, as indeed they were bound to follow, the full bench decision in D K.ailash Chandra Tara/dar's casc!"( 1)- G. K. Mitter J. who delivered tbe judgment of the appellate court after referring to the various conflicting decisions of different High Courts in India on this questi011 makes the followini observation : ''It is somewhat surprising that in spite o! great di'\'Cl'- gcnc.e of opinion among the different High Courts the matter 1 has not reached the Supreme Court as yet and one can only hope that it will do so at an early date 10 that the question , can be resolved ODCe for alt.'' In Kllilash Chandra Tara/dar's case!"(') the auction-purchas~r w~ 'lfas a~o the decree-holder has made an application for delivery of possess10n under o.XXI r.95 of the Code of Civil Procedure. The F exec~ting court held that he was only entitled to possession under r:96 !hat 1s, thro!Jgh a tenant in possession. Upon an appeal by the decrechol~er auchon purchilser the appeal was resisted mainly on the conlcntJoa that no appeal lay. The lower appellate court allowed the appeal and ordered the auction-purchaser to be put into kluu po~~s5100 under r .. 95: Upon appeal by the judgment-debtor to the High Court, the prmctpal contention of the jud~ment-d.:btor was that no G appeal lay to the District Court. The Division Bench who heard the ~p~al refe:r.ed t~e case to the Full Bench oa account of certain con· ICtmg decJsJons In the 1-li~;h Court of Calcutta. While making the ~hde0 .of .reference the Div;sion Bench held that no appeal llY b:fore 1 e !Strict Court because the matrer did not come within r. 97 on t~eo gr~~nd!l. name!~ (i) because it was not a question arising b~twee~ 11 cuti~a 1~ to the SUit a.nd (ii) it was not a matter relating to !he e~j deli 0 '. dischharltC or sat•sfaction of the decree. Charterjee, Acting C. d venng 1• e JUdgment on behalf of himself and four other learnc {I) l.l.R. SJ Cal. 7SJ. (2) ll.R. 26 1:111. 252. lJAllNANDllAI V. DEBIDUTT (Mukherjea, J.) 213 A Judges ans.wered the question _as _to whether a decree-hoider aucti j)prcbaset IS a party t b .c~us~ f~ht ~;f app!vinc for that t'1e auction purch::~sl!r should have t e r ~ that rocecdings for P<>ss~s~ion under the provis!ons of r .. 95 a;d rt ~~ of r~les relati'ng to obtarn,ng possession were tncluded 1n th .. ca c the execution of the de-:rce". f b ,_ Se d b t ued libnrally As ar ac ... as II . 1 ·c. 47 in our view shou! · e cons r 1 in ~favo;Jr of patting a In '!'>2(•), the Privy Council spoke strong y , . t:!l !.t.R. zr, L1h. 252. (~) 1 '> r.A Joli. (I) 19J.A.. I M. {3) I.L.R. 53 Cal. 781. 214 SUPREME COURT REPORTS ( 1974] 1 S.C.R, liberal construction on sec. 244 of the Code of Ovil Procedure of 1~82 which corresponded to present sec. 47 of ·the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar( 1 ) If a liberal construction be put upon sec. 47 it is difficult to understand why a, decree-holder who has b~en a party to the -decree will shed his character as such party merely upon purchasing the property . at the execution sale. After· all, a decree-holder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery .of possession to him of the property purchased by him. Having regard. to this consideration, if any question . · -is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment debtor offers any resistance to d-elivery of possession the question must be om which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit. Speaking of the two conllicting views on this section the learned commentator of the 13th ·Edi1ion of Sir Dinshaw Mulla's· "Code· of .. Civil Procedure makes the followi~g observation : · "Th~ cases in which it has been held that an auction purchaser even if he is the decree-holder is not a party to the suit; require reconsideration in view of the ruling of the Judicial Committee that such an auction purchaser is a party . to the suit." The decision of the Judicial Committee which the learned commentator had in mind is t1~at of Ganapathy v. Krishnamachariar(1). It is important to ~emember th~t after the decision of the Privy Council in Ganapathy's case there h.as been an amendment of sec. 47 as a result of which the purchaser at a sale in . execution of a decree, whether he is the decree-holder or not, is unquestionably a party to · the suit for the purpose of sec. 41,. Having regard to this, all question:; arising b~twcen the auction p_urchaser and the judgment-debtor must in our view b~ determined by the executing court and not by a / separate suit. . In view of the foregoing considerations we have no hesitation in upholding the view taken by the Calcutta High Court. In the circumstances we dismiss the appeal with: costs. . S.C .. Appeal dismissed. , . -..> (1) 45 1. A. 54.· L944 Sup C.I./73-25J0-4-Jl-74-GIPF A n c D ·E F ..c ' ~~.· ·-f H