JUDGEMENT
Abhay S. Oka, J. -
(1.)I have heard the learned counsel appearing for the parties on the following substantial question of law : "whether a suit for possession filed by the respondent-auction purchaser in execution is maintainable in law in view of section 47 of the Code of civil Procedure, 1908 -
(2.)With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. The property subject-matter of the dispute is Gat No. 1 admeasuring 6 hectare 12 Are from village Balwantwadi, Taluka Nandgaon, District Nasik. The suit property was purchased by the deceased original plaintiff in auction in execution of the decree passed in Regular Civil Suit No. 62 of 1969. The sale was effected on 23rd September, 1971. The predecessor of the present appellants filed an Application for setting aside the same. On 16th August, 1973 the sale in favour of the respondent (original plaintiff) was confirmed by the Executing court. A suit was filed by the respondent-auction purchaser for possession of the suit property. The said suit was dismissed by the learned trial Judge by holding that the suit was not maintainable on the ground that the only remedy available for the plaintiffs was to apply under Rule 95, Order XXI of the Code of Civil procedure, 1908 (hereinafter referred to as the said Code). An Appeal was preferred by the respondents before the District Court. By the impugned judgment and Decree the said Appeal has been allowed by the District Court and a decree for possession has been passed in favour of the respondents.
(3.)The learned counsel for the appellants submitted that a liberal construction is required to be put upon section 47 and therefore, if the judgment debtor offers any resistance to the delivery of possession to the auction purchaser, the questions raised by the judgment debtor will be one which relate to execution or discharge or satisfaction of the decree and the said questions will be arising between the parties to the suit. He submitted that all questions arising between the auction purchaser and judgment debtor must be determined by the executing Court and not by a separate suit. He placed reliance on decision of the apex Court in the case of Harnandrai Badridas vs. Debidutt Bhagwati Prasad and ors. , (1973) 2 SCC 467. He relied upon clauses (a) and (b) of Explanation II of section 47 of the said Code and submitted that the bar of suit under sub-section (1) of section 47 will be squarely applicable to the suit by an auction purchaser. The learned counsel appearing for the appellants submitted that the law of limitation provides for a limited period to enable the auction purchaser to apply under Rule 95 of Order XXI of the said Code and there is no provision for condonation of delay in filing the said Application. He, therefore, submitted that the suit filed by the respondent six years and more after the confirmation of sale was not maintainable. The learned counsel appearing for the respondents invited my attention to various decisions of the Apex Court and Privy Council and submitted that the auction purchaser not being a party to the original suit in which decree under execution is passed can always file an independent suit for recovery of possession.
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