Karnataka High Court
K.N. Krishnappa vs T.R. Gopalkrishna Setty By L.Rs. And ... on 15 March, 1996
Equivalent citations: AIR1997KANT152, ILR1996KAR2520, 1996(3)KARLJ703, AIR 1997 KARNATAKA 152, (1996) ILR (KANT) 2520, (1996) 3 KANT LJ 696, (1997) 1 CRIMES 204, (1997) 2 CIVLJ 386
JUDGMENT
1. The appellant was the 5th defendant in O.S. No. 22/1979 filed by the 1st respondent for declaration of his title to the suit schedule property and for delivery of possession and also for past mesne profits of Rs. 1080/- and future mesne profits at the rate of Rs. 30/ - per month from the date of suit till delivery of possession. The suit was contested by the appellant and the 4th defendant inter alia on the grounds that the suit is barred under the provisions of Section 47, C.P.C., since the decree-holder purchaser should have obtained delivery of possession on the execution side within the period of limitation and that the suit is not maintainable. They also took the plea that they perfected their title by adverse possession.
2. The trial court decreed the suit holding that the plainiff became the owner of the suit schedule property by virtue of the purchase in the court auction sale in Execution Number 6179/1956 and that the defendants are in wrongful possession of the same. It has further held that the suit was not barred under Section 47, C.P.C. The claim of the defendants that they acquired title by adverse possession was rejected. The appeal filed by the present appellant in R.A. No. 71/1989 was dismissed by the Principal District and Sessions Judge, Kolar, confirming the findings of the trial court, giving rise to this second appeal.
3. The facts, in brief, are hereunder:--The first respondent obtained a decree in O.S. 364/1953 for recovery of amount due on mortgage from K. Narasimha Naik -- the father of defendant Nos. 1 to 5 and in execution of the decree, the suit property was brought to sale. The 1st respondent was the auction purchaser, with permission of court, in the auction held on 7-3-1957. The sale was confirmed on 19-4-1957 and a sale certificate was issued. The appellant and respondent numbers 2 to 5 remained in possession and enjoyment of the suit schedule property. Claiming that he became the owner of the property by virtue of the court sale, the 1st respondent filed the suit O.S. 22/1979 and his wife and children were impleaded as legal representatives after his death, during the pendency of the proceedings.
4. The present appeal is filed by the 5th defendant in O.S. 22/79 and the decree is not challenged by the other defendants. The decree in O.S. 22/79 is confirmed in R.A. 71/89.
5. It is contended by Sri Vijaya Shankar, learned counsel for the appellant that the suit for recovery of possession of the property purchased in court auction sale, is one essentially relating to execution, discharge and satisfaction of the decree in O.S. No. 365/1953 and is barred by the provisions of Section 47, C.P.C. In support of the contention, he relies on the decision in Harnandrai v. Debidutt Bhagwati Prasad, , On the other hand, it was contended by learned counsel for Sri H.S. Jois for the respondents 1(a) to (i) that the suit as laid by the plaintiff, being one for declaration of title and for mesne profits, cannot come within the purview of Section 47, C.P.C. as such reliefs cannot be granted in execution, and hence the suit is maintainable. He further contends that under sub-section (ii) of Section 47, C.P.C. which was on the statute book, during the pendency of the execution proceedings, a suit can be tried as an application under Section 47, C.P.C. and an application can be tried as a suit, and hence it is open to the Court to treat the suit as an application under Section 47, C.P.C. and to give relief, even if it is held, that the suit was not maintainable.
6. Arising out of the rival contentions, the question for consideration is whether the suit is barred by the provisions of Section 47, C.P.C.
The decree holder in O.S. 364/1953 was auction purchaser in the court auction sale held in Excution No. 679/1956. He bid with the permission of the court in the auction held on 7-3-1957 and the suit properties were knocked down in his favour. The sale was confirmed on 19-4-1957 and the sale certificate was issued. Defendants 1 to 5 remained in possession and the decree-holder did not do anything thereafter, for recovery of possession, until he filed the present suit in O.S. 22/1979. The suit was resisted by defendant Nos. 4 and 5 on several grounds, out of which, the main contention revolves round Section 47, C.P.C.
7. Sri Vijayashankar bases his contention of . He submits that the question of delivery of possession is one relating to execution, discharge or satisfaction of the decree, which should be decided only under Section 47, C.P.C. and not by a separate suit. In the above mentioned decision the Supreme Court did not agree with a contrary contention that delivery of possession does not relate to execution, discharge and satisfaction of the decree. While holding that Section 47 should be construed liberally, it was held as follows:
"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 delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.
It was further held:
All questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separate suit."
8. Sri Jois submitted that a Division Bench of this Court in M.C. Subbanna by L.Rs, v. Nanjamma, (1972 (1) Mys LJ 183 : (AIR 1972 Mys 190), held that delivery of possession does not relate to execution inasmuch as it does not relate to execution, satisfaction and discharge of a decree. The decision of this court is no longer good law in view of the decision of the Supreme Court in Harnandrai v. Debidutt Bhagwati Prasad, .
9. It was next contended by Sri Jois that the suit may be considered as an application under sub-section (2) of Section 47, C.P.C. sub-section (2) was omitted by Amendment Act of 1976 and was not on the Statute Book on the date of filing of the suit in the year 1979. It is not open to the plaintiff to base his contention on sub-section (2) which was deleted. Section 47, C.P.C. should be looked into, as it stood on the date of the suit. Section 47, C.P.C. reads as follows:
"Section 47(1):-- All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) (Omitted) (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."
10. Sub-section (1) of Section 47 makes it clear that all questions arising between the parties to the suit in which the decree was passed, or their representatives, which relates to execution, discharge, or satisfaction of the decree has to be determined by the Court executing the decree and not by a separate suit. Under sub-section (3), the question whether any person is or is not the representative of a party shall be determined by the executing Court. Explanation 11 (a) and (b) makes it clear that a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit. 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 Section 47 as laid down by clauses (a) and (b) of sub-section (3) of Section 47.
11. As laid down by the Supreme Court in the aforementioned decision, the question relating to delivery of possession to the auction purchaser or his representatives, by the judgment-debtor or his representatives, is a matter relating to execution, discharge and satisfaction of the decree within the meaning of Section 47, C.P.C. Sub-section (1) of Section 47 prohibits determination of such questions by way of a separate suit and mandates that such questions shall be determined only by the court executing the decree and not by a separate suit.
12. Section 47, C.P.C. received a liberal construction from the Supreme Court in Smt. Nandarani Mazumdar v. Indian Airlines, . A suit was treated as an application under Section 47, and relief was granted to the decree-holder. The decree-holder therein obtained a decree for maintenance and subsequently filed a suit after the death of her husband for declaration of charge on the estate of the deceased husband. Having regard to the fact that the Decree-holder was a widow, the Supreme Court felt that on account of some procedural error, the widow should not be deprived of the fruits of an order of maintenance and granted relief as a measure of ex debito justitiae and treated the suit as an execution petition. The facts of this case are totally different. The sale was confirmed and sale certificate was issued on 17-10-1957 whereas the suit was filed in the year 1979. No reasons are forthcoming for the enormous delay in seeking delivery of possession. The appellant pleaded that the suit property underwent enormous change during the past two decades prior to the filing of the suit and constructions are put up at considerable cost. The ratio in the above decision cannot be applied to this case.
13. For all the aforesaid reasons, I am of the view that the suit is barred under subsection (1) of Section 47 and it is not open to the Court to treat the suit as an application under Section 47(21) which was not in existence on the date of the suit. I accordingly hold that both the Courts below were in error in decreeing the suit. The appeal is accordingly allowed. The decrees of the Courts below. are set aside.
14. An oral application is made requesting grant of leave to appeal to the Supreme Court. As no substantial question of law of general importance is involved in this appeal, leave refused.
ORDER ON I. A. III for recalling the Order dt. 1-2-96.
15. This application is filed by the appellant for restoration of possession of the suit property under Section 151, C.P.C. The appellant states that he was dispossessed by the respondents pursuant to an ex parte order dated 15-2-1996 in Ex. 79/93 by the learned Additional Civil Judge, Kolar after the dismissal of the appeal by this Court on 1-2-1996 for default, after the appeal was restored on 12-2-1996.
16. This application is opposed by the respondents contending that the application is not maintainable as Section 144, C.P.C. is applicable and also on the ground that such an application does not lie in this Court and that it is only the trial Court which can be approached in that regard.
17. The execution of the decree of the Courts below was stayed by this Court by an order dated 18-11-1993. On 1-2-1996, the appeal was dismissed for default and along with the appeal, the interim orders also stood vacated. On 3-2-1996, an application was filed for restoration of the appeal. The appeal was restored by an order dated 12-2-1996. After the dismissal of the appeal for default the respondents moved the Court for execution of the decree and on 16-2-1996 the appellant was got evicted pursuant to the decree.
18. The contention of the learned counsel for the appellant is that no execution could have taken place after the restoration of the appeal and hence the appellant should be put back in possession. The learned counsel for the respondents contends that the application is not maintainable and an application for restoration should be filed only in the executing Court.
19. With the restoration of the appeal on 12-2-1996, the interim order of stay was automatically restored and was in force from 12-2-1996. No execution could have taken place after 12-2-1996. As the appellant was evicted in execution of the decree only on 16-2-1996, the appellant should be put back in possession. The inherent powers of this Court under Section 151, C.P.C. can be invoked for restoring the parties to their position in which they were, prior to the execution. The power of restitution is not confined to Section 144, C.P.C. as the Court has inherent power to grant restitution in exercise of the powers under Section 151, C.P.C. as held by this Court in M/s. Hameed and Hameed Enterprises v. M/s. Nicky's Parlour, .
20. The application is therefore aliowed and the appellant will be put back in possession of the suit schedule properties from which he was evicted, in execution of the decree.
21. Order accordingly.