HARNANDRAI BADRIDAS versus DEBIDUTT BHAGWATI PRASAD & ORS.

Citation: [1974] 1 S.C.R. 210 · Decided: 04-05-1973 · Supreme Court of India · Bench: A.N. GROVER · Disposal: Dismissed
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Judgment (excerpt)

210 
HARNANDRAI BADRIDAS 
A 
v. 
DEBIDUTT BHAGWATI PRASAD & ORS. 
May 4, 1973. 
[A. N. GROVER, K. K. MATHEW AND A. K. MUKHERJEA, JJ.] 
Code of CMI Procedllrc--Order XXI &le 95 IO 102-Whether after an uuc-
n 
tion sale ill execution of a decree, a decree-holder auction-purchaser can move the 
e.xeculing Court jor de/irery of vacant possession of an immovable property, 
In May 1956, One D obtained a money decree against H. In January 1956, 
T was appointed Receiver in an insolvency proceeding against one G, a partner 
of the ue1enoant thm in respect of premises No. 99 and 128 Couon Street, 
Calcutta for the purpose of sel)ing those properties. On April 3, 1958, Mr 1' 
was also appomLed receiver in execution of the decree obtained by f) for the 
C 
sale of the lWO pr~:mises. The properties were put up for sale by auction and 
K was declared the purchaser of premises No. 128, Cotton Street. K made a 
deposit oi earnest money. Jhere were various proceedings thereafter but on May 
19, 1964, tll~ rece1ver was directed to complete the sale within one month and K 
was diriJ.ed to pay the balance of tb.e purchase money. The Receiver was 
directed to execute and register a conveyance on behalf of the judgment-debtors 
in case of refusal. 
On June 17, 1964, the ~eceiver executed the conveyance 
on behalf of the judgment-debtor and the insolvent. ,Jn due course, the 
Court 
made an orde.r to deliver up va~ant possession to the auction-purchaser and on 
D 
appeal, the appellate Court confirmed the original order. 
The main coptention of the appellant was that as soon as a r-:ceiver in execu-
tion has executed a conveyance 111 ravour of an auction purchaser, the decree 
stands satisfied and there is an end of the execution proceedings, For delivery 
of vacant possessiOn of the immovable property he has to file a separate suit 
to get that possession. 
Dismissing the appeal and agreeing with the decision of the Calcutta High 
Court in Kai/ash Chandra' Tarajdar v. Gopa/ Chandra Poddar, l.L,R. 53 
Calcutta 781, 
HELD: (i) If a_confirmation of the sale would finally terminate all ques-
tions as to the execution of the decree, it is difficult to appreciate wby the 
legislature would frame such rules as rules 95 to 102 under order XXJ of the 
Code of Civil Procedure. The legislature must have thought that the duty of 
the executing court should not end with the confirmation of the Sale as it is 
because the legislature thought "that the auction purchaser should have the 
right of applying for possession under the provisions of r. 95 and r. 
96 that 
proceedings for obtaining possession were included in the catena of rules· relat-
ing to the execution of the decree", 
[213G] 
(ii) Sec. 47 of the Code of Civil Procedure should be construed liberally. 
If such a construction is put it is difficult to understand why a decree holder 
who has been a party to the decree will shed_ his character as SJ.ICh party 
merely upon purchasing the property at the execution sale. Afier all, a ·decree 
holder purch~~es the property in execution of his decree with the premission 
of the Court. There is no reason why he should not retain his cllaracter of 
a party to the suit until the delivery of possession to hiqt ·of the property 
purchased by him. Having regard to the consideration, if any question is 
raised by the judgment-debtor at the time of delivery of possession concerning 
the nature of tire rights purchased and if the judgment-d~btor offers any resis· 
tance to delivery of possession the questiOn must be one which in our view 
relates to the execution, discharge and satisfaction of the 
decree 
and 
ari.~es 
between the parties to the suit [213 HJ 
Kailash Cha11dra Tara/dar v. Gopal Chandra Podder I.L.R. 
53 
Calcutta 
781 referred to and Ram Singf1 Gopal Sing!; and others v. Abdullah Habilullah 
J.I..R. 26 lab, 252 over ruled. 
E 
F 
G 
H 
IIARNANDRAI V, 
DEBIDUTT 
(Mukherjea, /.) 
' 211 
A 
CML APPELLATE JURISDICTION: Civil Appeal No. 1323 of 1967. 
Appeal by certificate from the judgment and order dated April 29. 
1966 of the <=;alcutta High Court in Appeal No. 109 of 1965. 
S. C. Manchanda and V. Maya Krishnan, for the appellant. 
B. P. Malzeshwari and Suresh Seth, for Respondent No. 1_ .. 
Sharad Manohar and B. P. Maheshwari, for Respondent No. 3. 
The Judgment of the Court was delivered by 
. MUKH.ERJEA, J.-This appeal by certificate from a judgment of the 
Calcutta High Court raises an important question as to. whether after 
an auction s
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