PANNA CHAND JAIN,J. - (1.) THIS revision petition under Section 115, Cr.PC is directed against the order dated 12th December, 1980, passed by the learned District Judge, Jaipur City, Jaipur in Civil Misc. Case No. 1 of 1980, by which an application for possession filed by the decree -holder purchaser was held to be maintainable by applying Article 136 of the Limitation Act, in preference to Article 134 of the Limitation.
(2.) THE material facts lie in a narrow compass and may be stated thus : Applicant Kailash Shankar is a decree -holder. Chouth Mai and Kailash Shankar plaintiffs who were father and sons obtained a preliminary decree in a suit for sale of mortgaged property situated in Chowkri Ghat Darwaza, Kothi, Mani Ramji, Jaipur City, against defendants Ganpat Singh, Bharat Singh, Smt. Prakash Kanwar and Smt. Damma Kanwar alias Sint. Abbey Kanwar - -A preliminary decree was passed on 1st August, 1974 for a sum of Rs. 37,447.00 only. The decree -holder aplied for the sale of mortgaged property in execution case No. 34 of 1975. The property was to be auctioned on 14th July, 1978. Decree -holder Kailash Shankar himself purchased the property for a sum of Rs. 38,000/, in a court auction. The judgment -debtor filed objections against the same under Order 21, Rule 90, CPC, on various grounds of irregularties and illegality in publishing and conducting the sale. The objection petition was, however, dismissed on 2nd January, 1979 and consequently, the sale was confirmed by the Executing Court on 2nd January, 1979. Kailash Shankar decree -holder purchaser moved an application in the executing court for issuing a warrant for possession in his favour on 17th July, 1980. Ganpat Singh objector raised objections to the petition of the auction purchaser. It was contended by the objector petitioner that the application for possession is time barred. It was submitted that the application for possession was filed on 17th July, 1980 and the sale was confirmed on 2nd January, 1979. It was submitted by the petitioner that the application is governed by Article 134 of the Limitation Act, 1963 and the period of limitation prescribed for such an application is one year and the time begins to run from the sale becomes absolute. The learned District Judge vide his order dated 12th December, 1980 over -ruled the objections dismissing the objection petition filed by the petitioner and held that the application is governed by Article 136 of the Limitation Act, and, as such, it was within limitation, as the limitation prescribed under Article 136 is 12 years. Aggrieved by the order passed by the learned District Judge, the present revision petition has been filed. The decree -holder purchaser has filed an application on 25th November, 1985 and submitted that after the sale was confirmed on 2nd January, 1979, Smt. Abhey Kanwar one of the judgment -debtor, filed an objection petition under Section 47 read with Order 21 Rule 72, CPC and the objections were held not maintainable, after confirmation of the sale. The learned Counsel appearing for the decree -holder purchaser submitted that as the objections were dismissed on 21st July, 1979, therefore, this date should be taken to be a date when the sale became absolute. Shri V.K. Bandhu, learned Counsel for the petitioner, submitted that the learned lower court has committed material irregularity in the exercise of its jurisdiction by applying Article 136 of the Limitation Act, 1963. His further submission is that Section 47 CPC has nothing to do with the period of limitation as it only lays down, what questions are to be determined by the Court executing the decree. He further urged that even under the amended Section 47 of the Code of Civil Procedure, a person is required to apply for delivery of possession of the immovable property purchased in auction sale and such an application is to be moved within one year from the date when the sale is made absolute, and proper article applicable is Article 134 of the Limitation Act, 1963. Shri Bandhu also submitted that Article 136 is a general Article and Article 134 is a special Article which deals with the application to be moved for delivery of possession by the purchaser of immovable property at a sale in execution of a decree and the period provided for such an application is one year from the date when sale becomes absolute. He has further submitted that the remedy open to the auction purchaser, is either to apply under Article 134 or to file a suit within 12 years. Shri Bandhu thus wants to canvass that even if the application for delivery of possession is barred by limitation under Article 134 of the Limitation Act, still a remedy is available to the purchaser to file a civil suit for the recovery of the property. In order to substantiate his arguments Shri Bandhu placed reliance on a number of authorities. In Mallika v. Ayyappy Karunakaran : AIR1981Ker236 on which reliance has been placed, the Kerala High Court has held as under: The application for delivery of possession of the property in the occupancy of the judgment debtor, or of some person on his behalf, has to be made in pursuance of the sale certificate issued under Rule 94 of Order 21 when the sale becomes absolute on the termination of the proceedings as aforesaid. In this view the auction purchaser (1st respondent here in) could seek delivery of possession of the property of the judgment -debtors only on the basis of the confirmation of the sale on the allowing of the appeal, A.S. No. 294 of 1972, on 18 -2 -1976, and if he did not care to file an application for delivery within one year from that date as required under Article 134 of the Limitation Act, 1963, he could not be permitted to get over the plea of limitation by resorting to the filing of an application for revival of the delivery application E.A. No. 1509 of 1968 filed on the basis of the inchoate confirmation granted before the proceedings terminated and the sale became absolute. In the above case, it was held that the auction purchaser must apply for delivery of possession of the property on the basis of confirmation of sale within one year and the proper Article was Article 134 of the Limitation Act. In Mani Devi v. Ram Prasad : AIR1968Pat70 , a Division Bench of the Patna High Court has held that an application of decree -holder under Order 21, Rule 95, CPC for delivery of possession was not barred by limitation either under the Act of 1908 or under the Act of 1963. Since the application was filed on 4th April, 1964, and the sale became absolute on 29th June, 1963, when the appeal of the judgment -debtor was dismissed. The Learned Division Bench considered Article 180 of the Limitation Act, 1908 which provided a period of three years for an appropriate application by a purchaser of immovable property at a sale in execution of a decree for delivery of possession from the date when the sale became absolute. Article 180 of the Limitation Act, 1908 is the same as Articles 134 of the Limitation Act, 1963, except that the period for such an application under Article 134 of the Limitation Act, 1963 it is one year only; but the starting point in Third column is the same namely when the sale became absolute ? In Ramakrishnayya v. Venkata AIR 1964 Mad 831, a Division of the Madras High Court also held that an application by a decree -holder auction -purchaser for delivery of possession of the immovable property purchased by him in execution sale is governed by Article 180 and not by Article 182. In this case, reliance has been placed on Abdul Aziz v. Chokkan (FB) AIR 1936 Mad 803. In Neckbar v. Prakash Nag AIR 1930 Mad 86 a Division Bench of the Calcutta High Court held that the period of three years under Article 180 governing the application of the auction purchaser for delivery of possession of property purchased is to be reckoned from the date of confirmation of sale. The same view was held by a Division Bench of the Nagpur High Court in Babulal v. Annapurnabai AIR 1953 Nag 215. Thus, in all the cases referred to above, it was held that the appropriate Article applicable for an application for delivery of possession by a purchasers of immovable property at a sale in execution of a decree is Article 134 of the New Limitation Act, or Article 180 of the Old Limitation Act, 1908. In the statement of objects and reasons to the Limitation Act, 1963, it was also stated that as the existing Article 182 is being omitted, Article 180 which the proposed Article 133 (now Article 134) seeks to replace, will apply to all purchaser in execution whether decree -holder or not. The period however is being reduced Jo one year from three years. Article 134, thus, enables a Court auction purchaser to apply for delivery of possession under Order 21, Rule 95, CPC within one year when the sale became absolute and he fails to so apply he can yet rely on his title and sue for possession within 12 years under Article 65 of the Limitation Act, 1963. /% fair reading of Article 134 will give this result. But, this is seriously challenged by Shri Patodiya, learned Counsel for the petitioner decree -holder purchaser. Shri Patodiya submitted that Section 47, CPC has been drastically amended by the Code of Civil Procedure (Amendment) Act, 1976, which came into force with effect from 1st February, 1977, by which Sub -section (2) of Section 47 was omitted and Explanation I and Explanation II (a) and (b) were substituted. The material change that it was effected through this amendment has been disclosed in the Explanation. Shri Patodiya, learned Counsel for the petitioner submitted that Sub -clause (d) of Explanation II of Section 47 of the Code of Civil Procedure has been newly added and it has extended the scope of question relating to the execution, discharge or satisfaction of the decree within the meaning of Sub -section (1) of Section 47. Sub -clause (b) of Explanation II thereto provides that 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. Shri Patodiya further pointed out that the said amendment was made vide the Code of Civil Procedure (Amendment) Act, 1976, on account of the proposition of law laid down by the Hon'ble Supreme Court in Har Nand Rai v. Devi Dutt : [1974]1SCR210 . He submitted that there were divergence of opinions between the various High Courts of this country as to whether the question of delivery of possession is one relating to execution, discharge or satisfaction of the decree. Madras High Court in Moyyappa v. Chiddambram AIR 1920 Mad 797, Calcutta High Court in Kailash Tarafdar v. Gopal Chandra Poddar AIR 1926 Cal 798; Kerala High Court in State v. Lakshmi Ammal : AIR1958Ker309 and Madhya Pradesh High Court in Ram Ratan v. Chainwamal AIR 1958 MP 349 have held that it is a matter of execution. While the High Court of Patna in Triveni v. Ram Sahai AIR 1931 Patna 241 Rangoon High Court in Ko Taik On v. N.S.A.R. Firm AIR 1936 Rangoon 298; Lahore High Court in Ram Singh Gopal Singh v. Abdullah Habibullah AIR 1944 Lah 402; Bombay High Court in Sevla Ram v. Vishma Nath AIR 1945 Bom 386 and Allahabad High Court in Mst. Suraj Devi v. Gulab Devi : AIR1955All49 have taken a different view. So far as this Court is concerned, in Mohan Lal v. Bhagwan Das 1965 RLW 474 and Daya Shankar v. Khub Chand has preferred the latter view. There is an unreported case of this Court in S.B. Civil Regular Second Appeal No. 456 of 1962 Gheesu Lai v. Chunnu, decided on 31st August, 1970, in which also the same view had been taken. One view that an application for delivery of possession under Order 21 Rule 95, CPC did not involve a matter relating to execution, discharge or satisfaction of the decree to the decree is satisfied as soon as the same is confirmed and sale certificate has been issued and the High Courts holding this view were of the opinion that the remedy for the auction purchaser for possession of the property purchased by him in the Court sale was to file a separate suit. The view that was taken by the other High Courts was based on the thinking that the execution of a decree -holder's decree cannot be said to be satisfied until in one case he has received the purchase money paid into the Court and in another case until he was put into possession of the property of the judgment -debtor which he has purchased This conflict is now set at rest by the authoritative pronouncement of the Supreme Court in Harnandrai v. Debidutt (supra). For better appreciation of the point in issue, it will be useful the quote the relevant portion of the judgment as under: (6) Section 47 in our view should be constructed liberally. As far back in 1892 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a viable construction on Section 244 of the Code of Civil Procedure of 1882 which corresponded to present Section 47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachaiar, 45 Ind App 54 : AIR 1917 PC 121. If a liberal construction be put upon Section 47 it is difficult to understand why a decree -holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. 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 resistence 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. (8) It is important to remember that after the decision of the Privy Council in Ganapathy's case 45 Ind App. 54 : AIR 1917 PC 121 there has been amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree -holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, 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.
(3.) IN view of the proposition laid down by their Lordships of the Supreme Court the question of delivery of possession under Order 21, Rule 38, CPC is one relating to execution, discharge and satisfaction of the decree. Thus, the view taken by the other High Courts, referred to above, and taken by this Court in Mohan Lal's case (supra) and Daya Shankar v. Khub Chand must be deemed to have been overruled. After the pronouncement made by the Hon'ble Supreme Court in the above referred case, this Court had occasion to consider this problem. The reported cases are Pukh Raj v. Kavar Chand 1974 RLW 59 and Triveni Bai v. Swaroop Chand 1974 RLW 79. In both the cases following the proposition of law laid down by the Hon'ble Supreme Court, this Court held that no separate suit lies for delivery of possession of the property purchased by the decree -holder auction purchaser at court sale and he must apply to the executing court for delivery of possession of the said property. Their Lordships of the Supreme Court in Harnandral's case have held that after the 1976 amendment of the CPC the distinction between decree -holder auction purchaser and stranger auction purchaser has vanished and both are unquestionably parties to the suit. It was also observed by their Lordships that if on account of sale all questions relating to execution, discharge and satisfaction came to an end, there was no purpose why the provisions as such Rules 95 to 102 should have been included in Order 21, CPC. A separate suit was, therefore, held to be barred. Under the Code of Civil Procedure prior to its amendment in 1976, the view prevailed for the applicability of Section 47 was that questions must be between the parties to the suit or their representatives and it must relate to the execution, discharge or satisfaction of the decree. If these factors are present then the question shall be determined by the court executing the decree and not by a separate suit. It is important to remember that after the decision of the Privy Council in Ganpathy v. Krishnamachaiar AIR 1917 PC 121, an amendment was made in Section 47, CPC and, it appears that after the pronouncement of the judgment by the Hon'ble Supreme Court in Harnandral's case (supra) on 4th May, 1973, Section 47, CPC has again been amended and, to resolve the dispute finally Explanation II, comprised in two parts (a) and (b) was substituted, making it clear that a question relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to execution, discharge or satisfaction of the decree within the meaning of this section. It may be noted here that all questions relating to delivery of possession, by a deeming clause, have been held to be questions relating to the execution, discharge and satisfaction of the decree for the purpose of Sub -clause (1) of Section 47, which provides that 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. Without resorting to any authority, it is clear that all questions relating to delivery of possession of property which has been purchased by a purchaser, whether he be a decree -holder purchaser or stranger in the auction sale in execution of the decree shall be regarded questions relating to execution, discharge and satisfaction of the decree and it is also clear that all questions between the parties to the suit and relating to execution, discharge and satisfaction of the decree are to be determined by the Court executing the decree and not by a separate suit and for the purpose of Sub -section (1) of Section 47, a purchaser of property at sale in execution of a decree, shall be deemed to be a party to a suit in which a decree is passed. Thus, an auction purchaser is a party to the suit and questions arising and relating to the delivery of possession of the property purchased at a sale in execution of the decree will be questions relating to execution, discharge and satisfaction of the decree and such questions must be decided by the executing court and a separate suit is barred.;