Karnataka High Court
Gat Nagamma vs Hardar Bahubali on 5 February, 1991
Equivalent citations: ILR1991KAR1560
ORDER 21 RULE 95 & SECTION 47: EXPLANATION II -Delivery of possession to auction purchaser within . Section 47 - To be decided by Executing Court not by separate suit. The Explanation makes it very clear that delivery of possession to an auction purchaser, whether he is a decree-holder or a stranger, in pursuance of a decree is a question between the parties to the suit and that it relates to execution, discharge or satisfaction of the decree within the meaning of Section 47 CPC...All questions arising between the auction purchaser and the Judgment debtor must be determined by the Executing Court and not by a separate suit. ORDER B. Jagannatha Hegde, J.
1. This Revision Petition is filed against the order dated 20-8-1987 passed in Execution Petition No. 48 of 1985 on the file of the Munsiff and J.M.F.C., Raichur, over-ruling the objections of Judgment-debtors as to the executability of the decree.
2. One Nagamma owner of a house situated in Somwarpeth locality of Raichur City mortgaged the same in the year 1956 for a consideration of Rs. 400/- by executing a registered simple mortgage deed in favour of the 1st respondent. However, the deed was executed in the name of Bagodi Konayya Shetty as Benami. The respondent-1 along with the said Bagodi Konayya Shetty filed O.S.No. 110 of 1964 against Nagamma for recovery of the mortgage amount by sale of the mortgaged property. A compromise decree was passed in the said suit and Nagamma was directed to pay the decretal amount through instalments. Since she failed to pay the amount as stipulated in the decree, respondent-1 filed an Execution Case No. 24/3/65 seeking the sale of the mortgaged property. Respondent-1 decree holder with the permission of the Court purchased the said property, and the sale was confirmed. Sale certificate was also issued in favour of respondent-1. Respondent-1 thereafter filed a petition under Order 21 Rule 95 C.P.C, for delivery of possession and that petition was numbered as Execution Case No. 53 of 1968. But the execution case was dismissed on a memo filed on behalf of respondent-1 not pressing the same without prejudice to his right to file a fresh suit.
3. Rospondent-1 filed a fresh suit for possession of the suit property purchased by him in auction sale on the basis of the sale certificate issued in O.S.96 of 1978 and the said suit was decreed on 30-1-19980. Regular Appeal filed by Nagamma also came to be dismissed on 9-4-1984. The decree passed in O.S.96 of 1978 became final and thereafter respondent-1 filed Execution Petition No. 48/1985 seeking possession of the property purchased in Court auction. During the pendency of this Execution Petition, Nagamma expired and respondent-1 impleaded the revision petitioner and respondents 2 to 4 as legal representatives of Nagamma.
4. The main objection of the legal representatives of the original Judgment-debtor before the Executing Court was that the decree passed in O.S.96 of 1978 was without jurisdiction, that it was not executable as the suit itself was barred by Section 47 C.P.C., and that the remedy of the auction purchaser viz., respondent-1 was to obtain delivery of the property purchased by him in Court auction by executing the decree in O.S.110 of 1964. The learned Munsiff over-ruled the objections of the L.Rs. of the Judgment-debtor by his order dated 20-8-1987 which is now challenged in this Revision Petition. It is not in dispute that this objection was not raised in O.S.No. 96 of 1978 by Nagamma and that it was raised for the first time by her L.Rs. in the present execution.
5. Under what circumstances an objection as to the validity of the decree could be raised for the first time in execution, has been made clear in VASUDEV DHANJIBHAI MODI v. RAJABHAI ABDUL REHMAN AND ORS., AIR 1990 SC 1475 by observing thus:
"When a decree which is a nullity, for instant, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the Executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
So, an objection to a decree being without jurisdiction or nullity could be raised in the execution proceeding for the first time and if raised the Executing Court which otherwise cannot go behind the decree is competent to entertain such an objection when the objection appears on the face of the record that the decree is passed without jurisdiction.
6. The question to be considered is, whether the decree in O.S.96 of 1978 was passed by a Court which lacked inherent jurisdiction to make it and whether the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and required examination of the questions raised and decided at the trial. In the instant case, as already stated, Nagamma - the original defendant did not raise the question of jurisdiction in O.S.96 of 1978. But this is a case where want of jurisdiction to pass the decree in O.S.96 of 1978 appears on the face of the record as Sub-section (1) of Section 47 C.P.C. which is mandatory bars a separate suit for determination of the question relating to the execution, discharge or satisfaction of the decree and the Executing Court has the exclusive jurisdiction to decide such questions.
7. In support of her contention that an auction purchaser can also file a suit for possession, Smt. Manjula Devi, learned Counsel for respondent-1, relies on the following three decisions - (1) GOVINDAPPA v. PREMANAND, wherein it is held that the remedy of an auction purchaser who is not a decree-holder, is either by any of filing an application under Order 21 Rule 95 C.P.C. or by a separate suit or by resorting to both; (2) SENAGODA MUDALIAR v. BASAVE GOWDA, 1981(1) KLC S.N. No. 28 @ 18 wherein it is stated that delivery of possession of the property purchased in execution sale is not a question relating to execution, discharge or satisfaction of the decree and if the auction purchaser fails to secure possession by making an application under Order 21 Rule 95 C.P.C. he is not barred by Section 47 for recovering possession by a suit; and (3) SHIVAJI AND ORS. v. VAIJNAT AND ORS., 1977(1) KLJ 166, wherein it has been observed that a suit for delivery of possession by the purchaser in execution of the award of the Registrar of Co-operative Societies is held to be maintainable as there is no provision in the Co-operative Societies Act restricting the remedy of a stranger-purchaser to make an application to the Registrar for delivery under Rule 38A. All these Decisions were rendered by learned single Judges of this Court.
8. The question whether an auction purchaser could file a suit for recovery of possession has been decided by the Supreme Court in HARNANDRAI BADRIDAS v. DEBIDUTT BHAGWATI PRASAD AND ORS., by stating that if any question is raised by the Judgment-debtor at the time of delivery of possession concerning the nature of rights purchased and if the Judgment-debtor offers any resistance to delivery of possession, the question must be one which relates to the execution, discharge and satisfaction of the decree and arises between parties to the suit, that the purchaser at a sale in execution of a decree whether he is a decree-holder or not is unquestionably a party to the suit for the purpose of Section 47 and that all questions arising between the auction purchaser and the Judgment-debtor must be determined by the Executing Court and not by a separate suit. Further, Sub-section (2) to Section 47 C.P.C., has been omitted and Explanations I and II have been substituted by Act No. 104 of 1976. Explanation II reads thus:
"(a) For the purposes of this Section, a purchaser of property at a sale in execution by a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this Section."
Thus the Explanation makes it very clear that delivery of possession to an auction purchaser, whether he is a decree-holder or a stranger, in pursuance of a decree is a question between the parties to the suit and that it relates to execution, discharge or satisfaction of the decree within the meaning of Section 47 C.P.C.
9. For the foregoing reasons, this Revision Petition is allowed and the impugned order dated 20-8-1987 passed in Execution Petition No. 48 of 1985 on the file of the Munsiff and J.M.F.C., Raichur, is set aside. No costs.