1. This is a reference to the Full Bench made in certain appeals against orders which arose under the circumstances mentioned in the order of reference. Briefly speaking, the claims of the decree-holder-purchaser of the disputed property in execution of a money decree and of his vendee having been disallowed as against the purchasers under a mortgage decree, one of them being the decree-holder himself with respect to a part of the property, the purchaser of the other part being a stranger, the question arose whether the order of the lower Court comes within the purview of Section 47 of the Code of Civil Procedure and is therefore appealable. The suit on the mortgage was instituted after the attachment in execution of the money decree and the sale under the money decree which was subject to the mortgage was made between the dates of the preliminary mortgage decree and the final decree. I shall proceed on the basis assumed in the order of reference that the question that has arisen relates to execution, discharge, or satisfaction of the decree within the meaning of Section 47, and that all that we are asked is whether such a question arose between the parties to the suit in which the decree was passed or their representatives.
2. As I understand the facts, the question in the appeal arose in execution of the mortgage decree; and, so far as the decree holder-purchaser is concerned, there can be no question of his position as he is a party to the suit.
3. But the decisions of this Court as to who are to be deemed, within the meaning of Section 47 of the Code of Civil Procedure, to be the representatives of the parties to the suit in which the decree which is being executed was passed are in a state of considerable conflict. On the question whether the purchaser can be regarded as the representative of the decree-holder in cases arising between him and the judgment-debtor or his representative, Moore J. had no hesitation in Kasinatha Ayyar v. Uthumansa Rowthan (1902) I.L.R. 25 M. 529, in holding that the auction-purchaser, even if he was not the decree-holder, was the representative of the judgment-creditor, basing his opinion on the Privy Council ruling in Prosunno Kumar Sanyal v. Kali Das Sayal (1892) I.L.R. 19 C. 683, and on the full Bench ruling of the Calcutta High Court in Ishan Chunder Sirkar v. Beni Madhub Sirkar (1896) I.L.R. 24 C. 62, and on that of a Divisional Bench of the same Court in Duar Buksh Sirkar v. Fatic Jali (1898) I.L.R. 26 C. 250. Bhashyam Aiyangar J., the other learned Judge, did not express any dissent from that view, but pointed out that the order was none the less an order under Section 244(now Section 47) because it was also passed under Sections 318 and 334 of the Code of Civil Procedure (corresponding to Rules 95, 97 and 98 of Order 21 of the Code of Civil Procedure). The ruling was followed by White C.J. and Subramania Aiyar J. in Sandhu Taraganar v. Hussain Sahib (1904) I.L.B. 28 M. 87, by White C.J. and San. karan Nair J. in Arthanari Chettiar v. Nagoji Rao (1912) M.W.N. 510, and by Benson und Wallis JJ.in Manikka Odayan v. Rajagopala Pillai (1907) I.L.R. 30 M. 507. But the opposite view is expressed by White C.J. sitting with Miller J. in Krishna Satapasti v. Sarasvatula Sambasiva Row (1908) I.L.R. 31 M. 177, and by Wallis and Krishnaswami Aiyar JJ. in N. Narayana Iyengarv. Veerabhadra Pillai (1910) I.L.R. 34 M. 417, and has been accepted by Sadasiva Aiyar and Bakewell JJ. in Subbamma v. Chennayya (1917) I.L.R. 41 M. 467. In this Court, therefore, the conflict of opinion on the point is such that one could not say that there is a clear preponderance of authority in support of one view rather than the other.
4. As regards the other High Courts it was held by Jenkins C.J.in Magan Lal v. Doshi Mulji (1901) I.L.R. 25 B. 631 that an auction purchaser could not be regarded as the representative of the decree-holder for the purposes of an application under Section 310(A) of the Old Code but Order 21, Rule 89 of the New Code now expressly provides that person owning property which has been sold or holding an interest therein by virtue of a title acquire 1 before such sale may also apply to have the sale set aside on depositing the purchase-money. As regards Calcutta and Allahabad no express ruling on the question has been cited before us and I have not found any.
5. On the question whether an auction-purchaser can be treated as the representative of the judgment-debtor, we find a similar conflict in Paramananda Das v, Mehabeer Dossji (1896) I.L.R. 20 M. 378 Subramania Aiyar and Boddam JJ. and in Sivarama Sastrial v. Somasundaram Mudali (1904) I.L.R. 28 M. 117 Subramania Ayyar and Sankaran Nair JJ, answered the question in the affirmative. But in N.Narayana, Aiyangar v. Veerabhadra Pillai (1910) I.L.R. 34 M. 417 already mentioned to which Wallis C.J. was a party, Krishnaswamy Aiyar J. held that he was not such a representative and this view has been followed by Sadasiva Aiyar and Moore JJ. in Thangavelu Mudaliar v. Mahomed Ibrahim Sahib (1916) 3 L.W. 377 and in Arasayee Ammal v. Sokkalinga Mudaly (1916) 1 M.W.N. 287 at least in cases where the decree does not mention or affect the property purchased. In another case reported in Kwppanna avundan v. Kuntara Kavundan (1909) I.L.R. 34 M. 450 both Wallis and Krishnaswami Aiyar JJ. held that the auction-purchaser would be the representative of the judgment-debtor and in an unreported judgment in Muhammad Bava Sahib v. Ramachandra Tevar A.S. No. 249 of 1916 Wallis C.J. sitting with Kumaraswami Sastri J. expressly disapproved of the dictum of Krishnaswami Aiyar J. in N. Narayana Iyengar v. Veerabhadra Pillai (1910) I.L.R. 34 M. 417 and of the rulings in Thangavelu Mudaliar v. Mohamed Ibrahim Sahib (1916) 3 L.W. 377 and Arasayee Ammal v. Sokkalinga (1916) 1 M.W.N. 287 and following Sivarama Sastrial v. Somasundara Mudali (1904) I.L.R. 28 M. 117 Nara-yanaswami Naik v. Seshappier (1907) 17 M.L.J. 321 and Kuppan Kavandan v. Kumara Kavundan (1909) I.L.R. 34 M. 450. Though on this aspect of the question also it cannot be said that the law is settled by a long current of decisions in this Court as the learned Chief Justice suggests in the unreported judgment, I agree with him so far that the view that an auction-purchaser of the judgment-debtor's interests in the property in dispute is his representative for the purposes of Section 47 of the Code of Civil Procedure has a preponderance of authority in its favour. As regards the other High Courts, both Calcutta and Allahabad See Ishan Chander Sircar v. Beni Madhub Sircar (1896) I.L.R. 24 Gal. 62 and Gulzari Lal v. Madho Ram (1901) I.L.R. 26 All. 447 have finally decided in favour of the view that the word ' representative' when taken with reference to the judgment-debtor does not mean only his legal representative that is, his heir, executor or administrator, but it means his representative in interest and includes a purchaser of his interest whether by a private sale or at court auction, who, so far as such interest is concerned, is bound by the decree. In Allahabad, Madho Das v. Ramji Patak (1884) I.L.R. 6 All. 286 and probably also in Calcutta, the purchaser would not be regarded as the representative of the judgment-debtor except in cases where the property purchased by him is involved in the decree in the course of execution of which the question has arisen. But except in Arasayee Ammal v. Sokkalinga Mudali (1916) 1 M.W.N. 289 this distinction does not appear to have been drawn in the rulings of our Court. A recent Full Bench of the Bombay High Court in Narsinhabhat v. Bando Krishna (1918) I.L.R. 42 Bom. 411 has ruled contrary to the view of the law as laid down by the Calcutta and Allahabad Full Benches.
6. Now, the Code has not defined the word ' representative ' though it has defined the phrase ' legal representative'. But that the two terms are not used in a synonymous sense is obvious, for while in Section 47 the legislature uses the word ' representative ' it uses the phrase ' legal representative ', as it were by contrast, in Sections 50 and 52 and so on. Nor can there be any doubt that the word ' representative ' was intended to have a wider meaning than 'legal representative'.
7. I think some light can be obtained on this question if we find out in what matters the purchaser of the interest of the judgment-debtor in property sold in execution can apply to the executing Court for redress or can be proceeded against in that Court. Under Section 64 an alienation after attachment is void as against all claims enforceable under the attachment. Under Section 74 where the purchaser has been obstructed in obtaining possession by the judgment-debtor or by any one on his behalf, the latter can be dealt with by the Court at the instance of the decree-holder or, purchaser. Then we find under Order XXI, Rule 35 that under a decree for delivery of immoveable property possession may be given by the Court executing the decree by removing any person bound by the decree which would apparently include a purchaser pendente lite. This seems to be made clear by the fact that under Rule 54 which provides for attachment of immoveable property persons are prohibited from taking any benefit under any transfer made after attachment. In the case of a person who claims a title to the property either independently of the defendant in the suit or if from the defendant, he asserts a title anterior to the institution of the suit in which the decree under execution was passed, his claim is placed on a different basis by the legislature. If such a person is in possession of the property the Court executing the decree cannot dispossess him and his right to establish his title by a separate suit is expressly recognised. See Order 21 Rules 58, 63, 99,100 and 101. By Rule 89 an application to set aside a sale by depositing the purchase money may be made by any person owning the property or holding an interest in the property under a title acquired before sale, and such an application would clearly be one between the judgment-debtor or a person who has acquired his interest on the one hand and the decree-holder and the purchaser under the decree on the other. It further says that the judgment-debtor's liability for costs will not be affected by such application. By Rule 90 an application to set aside the sale on the ground of irregularity may be made by the decree-holder or any person entitled to rateable distribution or a person whose interests are affected by the sale and to such an application the purchaser would clearly be a necessary party and questions arising under the application may have to be determined between him and the decree-holder or the judgment debtor as the case may be. The purchaser may himself apply to have the sale set aside on the ground that the judgment-debtor had no saleable interest and only on questions raised under Rules 89,90 or 91 being decided in favour of the purchaser that the sale will be confirmed. The purchaser can apply for the delivery of the property purchased by him as against the judgment debtor or against any person claiming under a title created by the judgment-debtor subsequently to the attachment. If the holder of a decree for possession of immoveable property or the purchaser of any such property sold in execution of a decree is obstructed in obtaining possession that is a matter to be investigated by the executing Court. If the resistance or obstruction is by the judgment-debtor or by a transferee from him after the institution of the suit in which the decree was passed, in that case the question is to be decided finally in execution. On the other hand if the obstructor is a bonafide claimant claiming under a title independent of the judgment-debtor then, as already mentioned, he would have a right to sue in spite of the decision in execution.
8. I think these provisions of the Code show that the legislature intended that all questions affecting a purchaser of the interest of the judgment-debtor in property which is either affected by the decree or is sold under a decree, are to be decided in execution between parties interested if the purchase was after the institution of the suit, whether at a private sale or at a sale in execution of a money decree against the defendant. I may here also refer to Section 146 which says that "Save as otherwise provided by this code, or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." Under this section the claim is not confined to an interest in property. It seems to me that the purchaser of property in execution of a decree may well be said to claim under the decree-holder for the purposes of proceedings under Section 47 in which his rights are affected. It may also here be pointed out that the law, so far as the rulings of this Court and also of Calcutta High Court go is settled that not only the assignee of a decree-holder comes within the scope of Section 47 but a person attaching the decree is the representative of the decree-holder within the meaning of this section-See Sah Man Mull v. Kanagasabapathi (1892) I.L.R. 16 Mad. 20,Krishnan v. Venkatapathi Chetty (1905) I.L.R.29 Mad. 318 Peary Mohunchowdhry v. Romesh Chunder Nundy (1888) I.L.R. 15 Cal 371. I do not see how the case of a purchaser in execution of a decree can well be distinguished on principle On the other hand where the interest of the purchaser of property either in execution of the same decree or of another decree is affected by any question raised in execution by the holder of the decree under execution the purchaser is entitled to defend his interest as a person claiming under the judgment-debtor. As has been pointed out time after time by the Privy Council as well as by the High Courts, Section 47, corresponding to the old Section 244, should be interpreted in as liberal a spirit as the language would reasonably admit of. I would therefore have little hesitation in holding that the word ' representative is not intended to be confined to legal representative but is used in the wider sense indicated in Krishna Bhupati Devu v. Vikrama Deo (1894) I.L.R.
18 Mad. 13 at 18. "It is a well-known principle that a purchaser in a Court-sale represents the judgment-debtor to the extent of the right, title and interest as he had in the property purchased at the date of sale and represents the execution creditor, in so far as he had a right to bring such right, title and interest to sale in satisfaction of the decree." This principle was laid down by Muttusami Ayyar and Best JJ. in holding that the purchaser was a party claiming under the execution creditor within the meaning of Section 13 of the old Civil Procedure Code; and there was thus privity of law between the two. No doubt the learned judges with reference to some cases cited against that proposition dismissed them with the remark that they were cases under Section 244 and not under Section 13 but they were not considering any question under the former section. I do not see why the principle should not be applied to Section 47 of the Code of Civil Procedure as well.
9. The question however seems to be concluded by the ruling of the Privy Council in Prosunno Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 Cal. 683 where their Lordships say "It is of the utmost importance that all objections to the execution sale should be disposed of as cheaply and as speedily as possible and their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244, and that when a question has arisen as to execution, discharge, or satisfaction, of the decree between the parties to the suit in which the decree was passed, the fact that the purchaser who is not a party to the suit, is interested in the result has never been held a bar to the application of the section ". Their Lordships in laying down the law in these terms observed that as the respondent was not represented before them they had examined the rulings of the Indian High Courts for themselves; and they also mention that Mr. Doyne who appeared for the appellant admitted before them that it was the common practice to make the auction-purchaser a party to an application for setting aside an execution-sale: in that case the appellant wanted by a suit to have the judicial sale of the Zamindari set aside on the ground of fraud on the part of the decree-holder and it was held that the question was determinable by virtue of Section 244 only by an order of the Court executing the decree and not by a separate suit No doubt their Lordships do not say that the auction-purchaser would be a representative of either the judgment-debtor or the decree-holder within the meaning of Section 244 but they clearly intended to lay down that as a party most interested in the result he would be entitled to be heard in any application under Section 244 and that if the question was one of the character described therein, i.e., relating to the execution, discharge or satisfaction of the decree, then it must be determined by a proceeding under that section in which the auction-purchaser must be joined. In Magan Lal and Doshi Mulji (1901) I.L.R. 25 B. 631 abovementioned it is observed that the Privy Council could not have intended to delete the words " arising between the parties to the suit in which the decree was passed or their representatives " from Section 244. But there seems to be no inconsistency if I may respectfully say so, in holding that that the question was one arising between the parties although an auction-purchaser who was most interested in the dispute was entitled and bound to ask for a decision by the court executing" the decree. Otherwise the result would be that the judgment-debtor and the decree-holder would be bound to have the question settled by the executing court and so far as the purchaser was concerned a fresh decision would have to be obtained by a separate suit.
10. The law, therefore, in my opinion, is that a person who has bought the property of the defendant in a suit since the institution of that suit, whether at a court auction held in execution of a money-decree passed in another suit or by private purchase, is entitled and bound to have any question relating to the execution, discharge or satisfaction of the decree decided under Section 47 by the court executing the decree when his interest is affected either by the decree itself or by the sale held in execution of that decree, and the same rule applies to a purchaser of the property under such sale whether he is the decree-holder himself or a stranger Whether the purchaser in the one case or the auction-purchaser in the other is to be regarded as the representative of the judgment-debtor or the decree-holder depends upon the nature of the question raised and who the contesting party is. This is in accordance with the view of the law adopted in Kasinatha Iyer v. Uthutnansa Rowthan (1912) I.L.R. 25 Mad 529 Sandhu Taraganar v. Hussain Sahib (1907) I.L.R. 28 Mad. 87 Arthanari Chettiar v. Nagoji (1912) M.W.N. 513 Manicka Odayar v. Rajagopala Pillai (1907) I.L.R. 30 Mad. 507 Paramananda Das v. Mahabeer Dasjee (1897) I.L.R. 20 Mad. 378 Linga Reddy v. Hussian Reddy (1904) I.L.R. 28 Mad. 117, N.Narayana Miyangar v. Veerabhadra Pillai (1910) I.L.R. 34. Mad. 450, Krishna Satapasti v. Sarasavattula Sambasiva Rao (1908) I.L.R. 31 Mad. 177 uppanna Kavundan v. Kumara Kavundan (1910) I.L.R. 34. Mad. 417 and the un-reported judgment in appeal No. 249 ot 1916 and is opposed to Subbamma v. Chennayya (1917) I.L.R. 4l Mad. 467, Thangavalu Mudaliar v. Mahomed Ibrahim Sahib (1916) 3 L.W. 377 Arasayee Ammall v. sokkallinga Mudali (1916) I.M.W.N. 287 and the latter rulings to that extent must be considered to be overruled.
11. It is clear that the questions before us were framed on the assumption that the applicability of Section 47 of the Code of Civil Procedure to the cases before the Subordinate Judge can be disputed only on the ground that some of those who contested them were neither parties (that is not alleged) nor their representatives; and in particular that the stranger purchaser referred to in the third question at the Court-sale in connection with which these proceedings have arisen must be regarded as the representative of one party or other to the decree under execution, if Section 47 is to be applied. That assumption, I agree with the learned Chief Justice, must be rejected, because, as the Judicial Committee held in Prosunno Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 C. 683 the auction-purchaser's inclusion in the proceedings is justifiable on the ground of his interest in their result and without reference to his possession of a representative character. In fact there was in that case, as I understand it, no attempt to decide whether he had one; and, if the judgment in Maganlal v, Doshi Mulji (1901) I.L.R. 25 Bom. 631 assumes such a decision, 1 would respectfully dissent from it. The Committee regarded it as sufficient to attract the application of Section 47 that a question relating to execution had arisen between the parties to the decree, without reference to the purchaser's inclusion in the proceedings. It need only be added that in order to the arising of such question, it is not essential that all the parties to the decree should actually be "impleaded in the proceedings, in which it is raised. For, although I deprecate the common practice, which is exemplified by the cases before us, of failing to implead in such proceedings either the decree-holder or the judgment-debtor, the nature of the question to be dealt with cannot be affected by their absence. In the cases before us the terms of the reference assume and it is evident that a question relating to the execution of the decree has arisen. It is therefore unnecessary to answer the third question referred directly or otherwise than by saying that the inclusion of the auction-purchaser as a party to proceedings relating to an auction-sale does not make Section 47, inapplicable to them.
12. The foregoing, of course, supplies no answer to the other questions referred, in which the representative character of the other contesting party in the cases before us, the purchaser in execution of a previous money-decree or his transferee, is in issue. For the connection of either with the proceedings in execution of the mortgage-decree, in which the dispute to be adjudicated on has arisen, is indirect and their interest in the result of these proceedings accrued to them independently of the sale, which they impugn. And accordingly, so far as they are concerned, their possession of a representative character must be established, if Section 47 is to be applied. It is not suggested that they can be regarded as the representatives of the holder of the decree under execution in the present proceedings since he had no connection with the Court-sale and private sale under which they claim. The conclusion will therefore depend on whether they represent the judgment-debtor in these proceedings, who is also the judgment-debtor under the money-decree in execution of which that sale was held. It appeared, it may be observed, in the course of argument that the statement of the parties' characters in my order of reference was inaccurate, in as much as in all these appeals and not only in Appeal Against Order No. 260, the contesting party was the vendee of the decree-holder purchaser under the money-decree. This however authorizes hardly any restriction of the discussion of the general principle involved. For the three alternatives have still to be considered, that the purchaser represents (1) no one or (2) the judgment-debtor or (3) the money decree-holder, either because he in fact derived title from him or on other grounds.
13. It does not seem to me that any detailed discussion of the numerous decisions enumerated in the judgment just delivered is called for, since the conflict between them is for the most part beyond reconciliation. On two points however there is a distinct preponderance of authority in this Court; and I therefore take it as settled law that the representative mentioned in Section 47 is not to be identified with a legal representative as defined in Section 2(11) and that a purchaser at Court-auction represents some one, i. e., either the judgment-debtor or the decree-holder. For although the latter conclusion is contrary to the dictum of Krishnaswami Aiyar, J,, in Nadumuni Narayana Aiyangar v. Veerubhadra Pillay (1910) I.L.R. 34 M. 417 and the cases from unauthorized reports, in which it is followed, to which my order of reference refers, it is as I have pointed out there, unsupported by reference to principle and irreconcilable with another portion of the learned Judge's judgment and other earlier and later decisions.
14. The question is then whether the purchaser is the representative of the judgment-debtor or decree-holder; and it is sufficient for the present reference to deal with it as regards money-decrees only and without regard to the special and more difficult considerations arising in connection with sale under mortgage-decrees, by which the interest of the mortgagee-decree-holder as well as the equity of redemption is ordinarily transferred. As regards money-decrees it seems to me very difficult, if not impossible, to imagine a case, in which the purchaser can become the representative of the decree-holder. The dictum of Moore, J., in Kasinatha Iyer v. Uthumansa Rowthan (1901) I.L.R. Mad. 529 was obiter, the fact that the auction-purchaser was the decree-holder affording, as he points out, an alternative ground for his decision; and the sale was in execution of a mortgage-decree and was therefore subject to the considerations above referred to. In Sandhu Taraganar v. Hussain Sahib (1904) I.L.R. 28 Mad. 87 the question arose regarding a purchaser from the decree-holder purchaser at the Court sale; and in that case and Manicka Odayan v. Rajagopala Pillai the Court sale was held under the decree, in the execution of which the application of Section 47 was proposed. Of the decisions relied on by Moore, J., in Sandhu Taraganar v. Hussain Sahib (1907) I.L.R. 30 Mad. 507 , Prosunna Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 Cal. 683 has already been referred to, whilst Ishanchander Sircar v. Beni Madhub Sircar (1896) I.L.R. 24 Cal. 62 does not, with all due deference, support him and Duar Buhsh Sircar v. Fatik Jali (1898) I.L.R. 26 Cal. 250 deals with the transferee from a decree-holder of his decree, not of what he had purchased in execution of it. On the other hand, as the learned Chief Justice has shown' the purchaser at a Court sale has been regarded,so far as appears, on general grounds,as the representative of the judgment-debtor in Krishna Satapasti v. Saraswatula Sambasiva Rao (1907) I.L.R 31 Mad. 177 and Subbamma v. Charnayya (1917) I.L.R. 41 Mad. 467. Apart from authority the fact recognized by Krishnaswami Aiyar, J., in Nadamuni Narayana Iyengar v. Veerabhadra Pillai (1910) I.L.R. 34 M. 417 that the purchaser succeeds to the judgment-debtor's rights in the property sold, would ordinarily be sufficient to constitute him his representative in interest, at least in proceedings regarding that property; and the only argument suggested to the contrary, that the purchaser and decree-holder are both interested to support the sale, at which the purchase was made, appears to assume, what is not the case, that they both have or have had in succession an identical interest in the property sold.
15. Holding that the purchaser in execution of a money-decree is ordinarily the representative of the judgment-debtor, I consider next whether he is so, when as in the cases before us, he is also the decree-holder and when his position comes in question in a distinct proceedings. It may be pointed out that, where his position does not so come in question, the fact that he is the purchaser does not, consistently with the reference already made to Prosunno Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 C. 683 require consideration. When it does, it seems to me that his character as decree-holder in one execution can have no effect on his position in another and that there is nothing in authority or on principle to debar us from treating him like any other stranger to the latter, no reason appearing for according him any other rights than a stranger purchaser from the judgment-debtor, whether by execution or private sale, would acquire.
16. The foregoing entails that the purchaser from a decree-holder purchaser under a money-decree is the representative of the judgment-debtor for the purpose of enquiry into a question relating to the execution of a distinct decree affecting the same property. I would answer the second question referred accordingly. An answer to the first question is not necessary.
Seshagiri Aiyar, J.
17. Before dealing with the questions referred a short statement of facts may not be out of place. The property in suit belongs to one P. P. Maya Nadar. One Muthuswamy sued him in O.S. No. 733 of 1915 and obtained a money-decree on the 6th of January 1916. In pursuance of that decree the properties were attached on the 21st of June 1916. They were sold on the 24th of October of the same year, purchased by the decree-holder, and the sale was confirmed on the 27th of November 1916. The property was delivered on the 12th of February 1917. The decree-holder purchaser sold the property privately on the 28th of March 1917 to the present appellant. That is the history of one stage of the proceedings. After the attachment under the money-decree one M.V. Nadan brought a suit on a mortgage executed by P.P.M. Nadar on the 14th of July 1916. He obtained a preliminary decree on the 25th of September 1916. The final decree was on the 11th of July 1917. The property was sold on the 17th of December 1917; three items out of four were purchased by the decree-holder himself, and the 4th item by one Subbiah Nadan a stranger. The sale was confirmed on the 21st of January 1918. The purchasers under the mortgage-decree in endeavouring to take possession were obstructed by the purchaser under the money-decree. Thereupon they applied for the removal of the obstruction. The lower Court held that the purchase under the money-decree was affected by the doctrine of lis pendens as the sale was subsequent to the institution of the mortgage suit. The present appeals are by the representatives of the purchaser under the money-decree against the order of the lower Court directing possession to be given to the purchasers under the mortgage-decree.
18. A preliminary objection was taken that no appeal lies because the purchaser under the money-decree cannot be regarded as a representative of any of the parties to the decree. It was under these circumstances the three questions have been referred for the opinion of the Full Bench.
19. Upon one question there was no contest. It was conceded by the counsel for the respondent that where the equity of redemption is purchased under a money decree, in matters relating to execution of a mortgage-decree, the auction-purchaser-under the money-decree will be the representative of the judgment-debtor in the mortgage-decree. This matter apart from concession has been definitely decided by the Full Bench of the Calcutta High Court in Ishanchander Sirkar v. Benimadhub Sirkar (1896) I.L.R. 24 C. 62 and by the Full Bench of the Allahabad High Court in Gulzari Lal v. Madho Lal (1904) I.L.R. 26 All. 447 . In the first of these decisions it was held that the decision of the Judicial Committee in Radha Madhub Holdar v. Manohar Mookerji (1888) 15 Cal. 756 is only consistent with the view that the auction-purchaser is the representative of the judgment-debtor. Although the point was not expressly decided by the Board, I respectfully concur with the view taken in Calcutta that that decision is authority for the proposition enunciated. It is true in Bombay they have held that the auction-purchaser is the representative of neither the decree-holder nor of the judgment-debtor; and in the latest decision of that Court in Narasinbhat v. Bundo Krishna (1918) I.L.R. 42 B. 411 it was held that he is not a representative of the judgment-debtor. But having regard to the decisions of the Judicial Committee and of the two Full Bench cases referred to by me, I am of opinion that the auction-purchaser represents the judgment-debtor in questions relating to the execution of decree in the second suit on the mortgage. But the question whether in the same suit he would be the representative of the judgment-debtor is not quite settled. I shall not discuss the authorities bearing thereon as in the view I am taking the discussion would be unnecessary. Before proceeding further I might state that the view that the auction-purchaser is the representative of the decree-holder has not been accepted in Calcutta or in Allahabad, It is certainly not the law in Bombay. In this Presidency the weight of authority is against making him representative of the decree-holder. Krishna Satapasti v. Saraswatula Sambasiva Rao (1908) I.L.R. 31 Mad. 177 Nadamuni Narayana Aiyangar v. Veerabhudra Pillai (1910) I.L.R. 34 Mad. 417 Subbamma v. Channayya (1917) I.L.R. 41 Mad. 467 take that view. On the other hand, we have Manicka Odayan v. Rajagopala Pillai (1907) I.L.R. 30 Mad. 507 and Arthanari Chettiar v. Nagoji Rao (1912) M.W.N. 513 in favour of regarding the auction-purchaser as the representative of the decree-holder. On principle it seems to me that this latter view is wrong. He is certainly not a representative-in-interest. Because beyond being the instrument for bringing the property of the judgment-debtor to sale, ordinarily speaking, a decree-holder does not transmit any of his rights to the auction-purchaser. I can understand his legal representative standing in his shoes. I can understand his assignee or other heir prosecuting his right. But I am unable to hold that an auction-purchaser represents the decree-holder. On the motion of the decree-holder the Court proceeds to sell the property of the judgment-debtor and the principle of Caveat Emptor has been applied to purchases so made. The only provision in the Code of Civil Procedure which affects the decree-holder is that which provides for an application by the auction-purchaser for a refund of the money from the decree-holder in case the sale is set aside. I am therefore unable to accept those decisions which hold that he is a representative of the decree-holder, as correct.
20. But I think all these difficulties may be overcome by a legitimate application of the principle enunciated in Prosunno Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 Cal. 683 . In that case a suit was brought by a judgment-debtor for setting aside the sale of his property on the ground that the decree-holder acted fraudulently. The auction-purchaser at the execution sale was made a defendant. When the matter finally went before the Judicial Committee their Lordships said: "Mr. Doyne, who appeared for the appellants, admitted that the question at issue was one relating to ' execution discharge, or satisfaction of the decree.' But he argued with much ingenuity that the suit, was not barred by the provisions of Section 244, because the question concerned the auction-purchasers as much as anybody (the italics are mine) and therefore, as he contended, it could not properly be described as a question " arising between the parties to the suit in which the decree was passed." Their Lordships say further on. " It is of the utmost importance that all objections to execution sales should be disposed of as cheaply and as speedily as possible. Their Lordships are glad to find that the Courts in India have not placed any narrow construction on the language of Section 244, and that, when a question has arisen as to the execution, discharge or satisfaction of a decree between the parties to the suit (the italics are mine) in which a decree was passed, the fact that the purchaser, who is no party to the suit, is interested in the result has never been held a bar to the application of the section." This statement shows that what the courts have to see is whether the issues arising for decision relate (a) to execution; (b) to deciding rival rights of the decree-holder and of the judgment-debtor, in the subject-matter. If those conditions are satisfied, the fact that others are interested in the result of the decision should not affect the jurisdiction and competency of the executing court to deal with the matter. Their Lordships lay special emphasis on the cheapness and speediness of remedies expected of an application in execution. If we turn to the language of Section 47 which corresponds to Section 244 of the Code of 1882 the same result would appear to follow. The section lays down only two conditions which have been insisted on by the Judicial Committee. It does not describe who the parties to the execution application should be. The obvious object of the legislature was that once a matter has been adjudicated upon by a regular trial, question affecting the same matter should as far as possible be dealt with in the execution department. In very many cases the same Judicial Officer may have to deal with the matters in execution: that would be a distinct advantage. Further the parties will be saved considerable expense if the question is dealt with in execution. I am therefore of opinion that as extended an application should be given to the rule enunciated by the Judicial Committee as is consistent with the language of Section 47. In Ganapathi Mudaliar v. Krishnamachariar (1918) I.L.R. 41 Mad. 403 another decision of the Judicial Committee they reiterated the principle enunciated in Prosunno Kumar Sanyal v. Kasi Das Sanyal (1892) I.L.R. 19 Cal. 683 . In Krishna Bhupati Deveu v. Vikrama Deo (1982) I.L.R. 18 Mad 13 this view seems to have found favour with the learned Judges. In Magan Lal v. Doshi Mulji (1901) I.L.R. 25 Bom. 631 there are observations of Sir Lawrence Jenkins which may be regarded as enunciating the same principle. The rule itself is so eminently a workable one and steers clear of many difficulties which have sprung round the application of Section 47 that in my opinion, both the letter of the law and the reason of it demand that this principle should be given wide effect by Courts in this country. I would therefore answer all the questions referred to us by saying that if the points for decision in an application before the executing Court relate to the rival rights of the decree-holder and of the judgment-debtor and also relate to execution, discharge, or satisfaction of the decree it should be dealt with in execution and not by separate suit. The right of appeal and second appeal will be governed by the same rules as affect application under Section 47.