Sabhajit vs Gopal on 24 July, 1894

Allahabad High Court
Sabhajit vs Gopal on 24 July, 1894
Equivalent citations: (1895) ILR 17 All 222
Author: J Edge
Bench: J Edge, Kt., Knox, Blair, Banerji, Burkitt


John Edge, C.J.

1. This is an application under Section 622 of Act No. XIV of 1882. The assignee of a decree-holder, plaintiff, brought the property which had been decreed to be sold to sale and purchased it himself. He obtained possession. Thereupon a party to the suit in whose favor the decree was in this sense that it directed that the sale should not affect his interests, which ware those of a usufructuary mortgage in possession, applied to the Court executing the decree to put, him again in possession and dispossess the auction-purchaser. The Court passed an order reinstating the usufructuary mortgagee in possession, and that is the order which is questioned in this application for revision.

2. It was objected that this application does not lie, it being contended that the order in question was one made under Section 244 of Act No. XIV of 1882, Another contention in support of the objection was that, if the order was made under Section 335 of Act No. XIV of 1882, the auction-purchaser had a remedy by suit to establish his title to possession.

3. On the other side it was contended that the order was one made is fact Under Section 335, but one which could not be made in law under that section, it being contended that the usufructuary mortgagee was a person coming within the description of a “judgment-debtor”, as that term is used in Section 335. That contention was carried further, and it was argued that, although the Court “might have had jurisdiction to make such an order under Section 244, it having in fact made the order under Section 335, this application in revision lay. It was also contended on behalf of the applicant that the Court wilt exercise its discretion trader Section 622, although the appellant had under the last clause of Section 335 a right of suit given to him.

4. The preliminary objection could not be decided by us without going in to the case in order to ascertain under what section this order could lawfully have been made. As to the contention that this was a case to which Section 244 applied, that was supported on two lines of argument. One was that Section 334 was the section which applied in this case, and that on the authority of Muttia v. Appasami I.L.R. 13 Mad. 504, an order passed on a matter within Section 334 was an order made under Section 244. We need not say whether we agree with or differ from the View of the Madras High Court on that point. Until it is necessary to do so we reserve our right to consider whether an order under Section 334 is an order Under Section 244. The other line on which it was contended that Section 244 applied, was this: It was said that the auction-purchaser was, as the assignee of the plaintiff in the suit, a representative of a party to the suit. His opponent, the usufructuary mortgagee undoubtedly was a party to the suit. The usufructuary mortgagee was a party in whose favor a decree, so far as he was concerned, Was made. It has been decided by this Court, and it is a matter upon which we are all agreed, that a purchaser at an auction-sale under a decree is Hot, as such purchaser, a representative of a party or a party to the suit in which the decree was passed, although if such auction-purchaser was as transferee, within the meaning of Section 232 of Act No. XIV of 1882, of the decree, t he might be, as such transferees, a representative of a party to the suit for the purpose of Section 244 of that Code. In this particular matter with which we have now to deal the auction-purchaser stands simply in the position of auction-purchaser and does not stand in the position of a plaintiff or a decree-holder. Rightly or wrongly he got into possession and now claims to be put Wok into possession, not as a decree-holder; for as such he had no right to possession, but as the auction-purchaser at the sale held under the decree. It is a pure accident that the person who was the transferee of the decree of the plaintiff is also the auction-purchaser, and, so far as the auction-purchaser’s rights as such are concerned, they must*be regarded as if he and the transferee lot the decree were two different persons. The decree had been executed. In lour opinion the auction-purchaser was not as such in the only position in [which he could appear here in this matter either a party or the representative of a party to the suit. The reason why it is not necessary for us to express an opinion as to the decision of the High Court at Madras to which I we have referred is that, in our view of the law, the usufructuary mortgagee, I although a party to the suit, was not a judgment-debtor within the meaning of Rs. 384 or Section 335. A judgment-debtor is defined in Section 2 of Act No. XIV of 1882; and this particular mortgagee was not a party against whom either a decree or an order relating to this matter had been passed, and consequently did not come within the description of Section 334, and did come within the description of party other than a judgment-debtor in Section 335. In our opinion the Court below had jurisdiction to entertain the application of the usufructuary mortgagee and to make the order which it did make under Section 335 of Act No. XIV of 1882.

5. There is a preliminary objection to this application in revision which has not been taker! and which relieves us from the necessity of deciding whether or not any effective suit to have the decree under which the sale was made construed, could, having regard to the circumstances of this case, to the fact that the auction purchaser as such took such title as he obtained at the sale under the decree and such other title as he had as the transferee of the decree, and to the fact that the usufructuary mortgagee was a party to the decree, have been brought by either of these parties against the other under the last clause of Section 335, in relation to the order of the Court the subject of this application, and consequently relieves us from having to decide whether this is a case in which we ought to exercise our discretion by reason of a right of suit being open to the applicant.

6. The preliminary point is that in no view of this application does it come within Section 622 of Act No. XIV of 1882. The Court below exercised a jurisdiction vested in it, It exercised that jurisdiction lawfully and regularly under the section of toe Code applicable to the case. There was no circumstance in this case which brought it within Section 622. It is not necessary to express any opinion as a the merits of this application. We dismiss the application with costs.

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