AIR 1955 ANDHRA 203

Andhra Pradesh High Court

Hon'ble Judge(s): Umamaheswaram , J

Civil P.C. (5 of 1908) , S.47, O.21 R.95, O.21 R.96— Purchase of undivided share - AIR 1944 Mad 62. AIR 1927 Sind 199 and AIR 1923 Oudh 251 (FB), Dissented from. A decree-holder auction purchaser of an undivided share is entitled to bring a suit for partition and possession of his share and S.47 is no bar to such a suit. There is no specific rule enacted as to how a purchaser of an undivided share is entitled to obtain possession. The judgment-debtor being a co-owner with others, O.21, R.95 will not apply as actual delivery cannot be effected and the auction-purchaser cannot be put in actual possession, along with the other co-owners. Rule 96 also will not apply as the property sold is not in the occupancy of a tenant or other person entitled to occupy the same under the judgment-debtor, as the co-owner or tenant-in-common is not holding under the judgment-debtor. Case Law discussed; Anno : AIR Com., Civil P.C., S.47 N.2; 1953 Mulla, S.47 (Topic discussed in AIR Com., note extra - See however, P.180 N. "Section. ............liberally" in Mulla). AIR Com., Civil P.C., O.21 R.96 N.4; 1953 Mulla, O.21 R.96 (Topic in AIR Com., note extra). .....