JUDGMENT
K.P. Radhakrishna Menon, J.
1. The points arising for consideration in these revision petitions are identical and, therefore, these three petitions are jointly heard and disposed of by this common order.
2. In execution of the award obtained by the petitioner-bank, the properties in dispute were sold in public auction. The petitioner-bank purchased them with the permission of the sale officer. The sale officer issued the sale certificate. Failure on the part of the judgment-debtors to surrender possession of the properties resulted in the petitioner-bank filing execution applications from which these revisions arise, before the Munsiff of Payyoli, under Order XXI, Rule 35 or 95, Civil Procedure Code.
3. The execution court, after considering the various aspects of the case, has dismissed these applications by the common order under challenge.
4. That the Co-operative Societies Act and the Rules do not contain provisions authorising the sale officer to put the decree-holder-purchaser in
possession of the property, in the event of the proceedings to take possession being obstructed by the judgment debtor himself, is beyond challenge. The question, therefore, is under such circumstances, can a decree-holder initiate proceedings under Order XXI, Rule 35 or 95, Civil Procedure Code, to take delivery of possession of the property from the judgment debtor ?
5. According to learned counsel for the judgment debtors, the only remedy that can be availed of by the decree-holder under such circumstances is to file a suit for recovery of possession and not to resort to the provisions contained in Order XXI, Civil Procedure Code. Dilating on this aspect, learned counsel argues that the moment the sale takes place and the sale proceeds are adjusted towards the decree, the decree stands satisfied and, thereafter, there is nothing that could be done through the execution court.
6. Yet another point raised by learned counsel in this context is that inasmuch as the sale certificate is not one issued under Order XXI, Rule 94, Civil Procedure Code, the execution court cannot entertain an application under Order XXI, Rule 95. Another impediment highlighted by learned counsel is that whatever be the position regarding these matters, since the sale certificate has not been registered in compliance with the provisions contained in Rule 83(5) of the Co-operative Societies Rules, the attempt to take delivery pursuant to such sale certificate cannot be taken cognizance of.
7. It is by now well-established that until the property is taken delivery of by the decree-holder-purchaser, he retains his character of a party to the suit and, therefore, if any dispute regarding the nature of the right possessed by the judgment-debtor at the time of delivery of possession arises or if the judgment-debtor offers any resistance to delivery of possession, they must be treated as matters relating to the execution and satisfaction of the decree and, hence, coming within the meaning of Section 47, Civil Procedure Code (see Harnandrai Badridas v. Debidutt Bhagwati Prasad, AIR 1973 SC 2423).
8. If that be so, the petitioner continues to retain the character of a decree-holder and, therefore, the petition to deliver the property under Order XXI, Rule 95 is maintainable. A question, however, would arise and it is this : can the petitioner, who has already chosen one of the two remedies to execute the decree, be allowed to leave that remedy mid-way and switch over to the other mode only for the purpose of getting delivery of the property. That there is no provision in the Co-operative Societies Rules conferring power on the sale officer to deliver possession of the property to the decree-holder-purchaser, in the event of the delivery being obstructed by the judgment-debtor, is beyond dispute. Under such circumstances, I am of the view that the principle of estoppel by election is not
applicable. The holder of the award, therefore, must be held to have the right to approach the civil court under Order XXI, Rule 95 for delivery of the property in the occupation of the judgment-debtor.
9. The question then is, can the judgment-debtor resist delivery of the property on the ground that the certificate of sale is not registered under the Registration Act ? My answer is no, because, as far as the judgment-debtor is concerned, the decree stands satisfied by the sale of the property. May be that a party other than the judgment-debtor can raise such a technical plea. Unlike a person who is a bona fide purchaser without notice, a judgment-debtor has no manner of right to retain the property under such circumstances. If this technical plea is given the stamp of approval by a court of law, justice will be the casualty. That shall not happen. Therefore, I am of the view that the application under Order XXI, Rule 95 for delivery of the property is maintainable.
10. The arguments highlighted in para 6 above are liable to be rejected in the light of the discussions in the preceding paragraph.
11. The order under challenge, for the reasons stated above, is set aside and the execution petitions are remanded to the court below. The court below is directed to pass appropriate orders directing delivery of the property, as expeditiously as possible and, in any event, within three months from the date of receipt of a copy of this order.
12. The C. R. Ps are allowed. No costs.
