JUDGMENT : - It has been rightly said that the real difficulty of the decree holder begins when he has obtained a decree. To this truism one may add another aphorism, viz., that the travails of auction purchaser start when the sale is confirmed by the court. This second appeal illustrates the correctness of this statement. 2. Sir Mohd. Yakub was a prominent citizen of Moradabad. He had borrowed a certain sum of money from Sahu Param Kirti Saran respondent 1 and executed a mortgage deed to secure the said loan. The properties mortgaged were two houses which are in dispute in this second appeal. Sir Mohd. Yakub was unable to pay this debt and in consequence the mortgagee filed a suit on the basis of the mortgage and the suit was decreed. Feeling himself aggrieved by the decree Sir Mohd. Yakub preferred a first appeal before this court. He however, died sometime in the year 1943 and his heirs were brought on record who included among others Mujtaba Hasan father of respondents 2 to 5 and husband of respondent No. 6. Suffice it to say that the first appeal was dismissed and the decree for sale of the two houses in dispute became final. The suit property was auctioned in execution of the decree and was purchased by Abdul Hasan, appellant in this second appeal. The sale was duly confirmed by the court and a sale certificate was issued in favour of the appellant. 3. It may be stated that Mujtaba Hasan resisted the execution proceedings on various grounds before its sale in favour of the appellant. The execution proceedings were further delayed as same of the heirs of Sir Mohd. Yakub who had died issueless, were alleged to be evacuees and the custodian of Evacuee Property was impleaded as a party to the execution proceedings. Since nothing turns in this second appeal on the objections filed by Mujtaba Hasan or the result of the proceedings under the Administration of Evacuee Property Act all that is necessary to emphasize is that these proceedings contributed to the inordinate delay with which this matter has come up before this Court. Since we in this country have opted for continuance of the cumbrous procedure governing civil litigation introduced by the British, delay in the disposal of cases may be said to be inevitable. Since we in this country have opted for continuance of the cumbrous procedure governing civil litigation introduced by the British, delay in the disposal of cases may be said to be inevitable. The courts have to administer justice in accordance with the procedure established by law and there is little they can do in the matter. 4. After the sale had been confirmed the auction purchaser-appellant applied for delivery of possession under O.XXI, Rule 95, C.P.C. of the property which had been purchased by him. Mujtaba Hasan had died in the meanwhile and his heirs viz., respondents 2 to 6 filed an objection against the said application. They contended that they were also co-sharers in their own right in the property and the appellant could not acquire any right or title in the property qua that share. The decree holder did not file any objection under R.97 of Order XXI C.P.C. presumably as it was superfluous for him to do so. 5. The execution court allowed the objection of respondents 2 to 6 by its order dated October 13, 1964. It held that respondents 2 to 6 had a share apart from the share inherited by them as heirs of Sir Mohd. Yukub in the property in dispute, and the appellant was not entitled to obtain possession as regards that share. The execution court directed that symbolical possession can be delivered to the appellant in so far as the share of Sir Mohd. Yakub was concerned. In doing so the executing court purported to act in accordance with the provisions of law contained in Rule 96 of Order XXI of the C.P.C. 6. The auction purchaser appellant felt himself aggrieved by the order of the execution court. He accordingly filed an execution appeal before the Distt. Judge. The said appeal has also been dismissed by the court of appeal below and the auction purchaser appellant has approached this Court in second appeal. 7. The lower court of appeal, hereinafter referred to as the court of appeal reversing the finding of the trial court came to the conclusion that the property in dispute was the exclusive property of Sir Mohd. Yakub and respondents 2 to 6 had no independent right, title or interest in the same. 7. The lower court of appeal, hereinafter referred to as the court of appeal reversing the finding of the trial court came to the conclusion that the property in dispute was the exclusive property of Sir Mohd. Yakub and respondents 2 to 6 had no independent right, title or interest in the same. It was, however, of the view that the appellant being an auction purchaser had no right to maintain the appeal against the judgment and order of the execution court dated October, 13, 1964. The correctness of the findings of the Court of appeal regarding the maintainability of the appeal has been strongly assailed on behalf of the appellant. 8. Learned counsel appearing for respondents 2 to 6 has on the other hand urged that since the court of appeal was of the view that no appeal at the instance of the auction purchaser was permissible in law, it should not have entered into the merits of the rival claims urged on behalf of parties. 9. I shall examine the submissions made on behalf of the appellant later in this judgment. At the outset I may say that the court of appeal was right in going into the merits of the rival claims urged by the parties. The practice of disposing of an appeal by the last court of facts on a legal or preliminary objection has been deprecated by this court time and again. Once the matter is at large before the court of first appeal it must record its findings on all matters in controversy between the parties. If the appeal is decided on a preliminary ground or on a legal question and the view taken by the first court of appeal is reversed by the higher court of appeal the case has to be sent back for a fresh decision to the court of first appeal to determine the other question on which the parties are at variance. This necessarily leads aviodable waste of time and expense. Moreover, it was necessary for the court of appeal to go into the alleged title of respondents 2 to 6 in order to determine the nature of the objection filed by them. If on the investigation of facts it was found that the nature of the objection was one which fell within the ambit of Section 47 C.P.C. the appeal of the auction purchaser should have succeeded. If on the investigation of facts it was found that the nature of the objection was one which fell within the ambit of Section 47 C.P.C. the appeal of the auction purchaser should have succeeded. I shall presently show that in spite of recording a finding of fact which was favourable to the auction purchaser appellant the court of appeal committed the error in holding that the appeal at the instance of the auction purchaser was legally not maintainable. 10. Before proceeding with the main controversy between the parties a preliminary objection urged by the learned counsel appearing on behalf of the contesting respondents 2 to 5 may be examined. He submitted that respondents 7 to 10 died during the pendency of this appeal and their heirs have not been substituted and as such the entire appeal should abate. He further contended that respondent 6 Smt. Achchi Bi widow of Mujtaba Hasan also died and her heirs had not been brought on record in spite of an application moved on behalf of the respondents 2 to 5 on January, 1980. He stated that this was an additional ground to dismiss the Second appeal on the ground of abatement. None of these contentions is legally acceptable. 11. In so far as respondents 7 to 10 are concerned they were only proforma parties and though they had been impleaded as opposite parties in the application filed by the appellant under Order XXI Rule 95, C.P.C. they had not appeared before this court. They did not claim any right in the property in dispute and did not set up a title in themselves. As already stated the objection preferred was only by respondents 2 to 6 and the title of respondents 7 to 10 was not in issue, either before the execution court or before the court of appeal. The Supreme Court in the case of AIR 1967 SC 1786 Mangal Singh v. Smt. Rattno has held that there was no abatement on account of the death of the pro forma party. I am in respectful agreement with the view taken by the Supreme Court in the said case. 12. Respondents 2 to 5 are the sons of Mujtaba Hasan deceased while Smt. Achchi Bi was his widow. I am in respectful agreement with the view taken by the Supreme Court in the said case. 12. Respondents 2 to 5 are the sons of Mujtaba Hasan deceased while Smt. Achchi Bi was his widow. True, it is that in January 1980 an application was moved on behalf of respondents 2 to 5 stating that Smt. Acchi Bi died and her heirs had not been impleaded. The said application was supported by an affidavit of Irtaza Hasan respondent No. 3. As already stated all the sons of Mujtaba Hasan were already on record as respondents 2 to 5. Significantly the name of another alleged heir of Mujtaba Hasan who was not a party on record was not disclosed either in the application or in the affidavit accompanying it. Against the said application the appellant filed a counter-affidavit on March 6, 1980, stating that according to the case of respondents 2 to 5 before the court of appeal they and their mother were the only heirs of Mujtaba Hasan. The appellant denied that Mujtaba Hasan had any other heir who was not on record. In the rejoinder affidavit filed on behalf of the respondents 2 to 5 it was averred for the first time that Mujtaba Hasan had also a daughter Ajez Fatima. The name of the husband of this alleged daughter or her address was again withheld by respondents 2 to 5. At the hearing of the second appeal an application accompanied by an affidavit was filed on behalf of the appellant. In the affidavit it was categorically stated that Ajez Fatima was not the daughter of Mujtaba Hasan. In these circumstances it is difficult to believe that Mujtaba Hasan or his widow had any other heir. Assuming for the sake of argument that Ajez Fatima was the daughter of Mujtaba Hasan the doctrine of sufficient representation applies. Learned counsel for respondents 2 to 5 has not been able to show what other grounds of objection were available to the alleged daughter of Mujtaba Hasan which had not already been taken by respondents 2 to 5. In the view which I am taking in the matter I am supported by a decision of the Supreme Court in the case of AIR 1971 SC 742 Mahabir Prasad v. Jage Ram. For the reasons stated above the preliminary objection raised on behalf of the respondents 2 to 5 is overruled. 13. In the view which I am taking in the matter I am supported by a decision of the Supreme Court in the case of AIR 1971 SC 742 Mahabir Prasad v. Jage Ram. For the reasons stated above the preliminary objection raised on behalf of the respondents 2 to 5 is overruled. 13. It has been already pointed out that the court of appeal negatived the rights claimed by respondents 2 to 5 independently of Sir Mohd. Yakub. It has held that respondents 2 to 5 were only heirs of Sir Mohd. Yakub and they were in possession of the disputed property in that capacity. The correctness of this finding has not been assailed before me on behalf of respondents 2 to 5. The court of appeal has, however, dismissed the appeal of the auction purchaser appellant only on the ground that the order of execution court in dismissing his application under R.95, Order XXI of C.P.C. was not maintainable in law. In doing so the Court of appeal has relied on a Division Bench decision of this court in the case of AIR 1957 All 251 , Harikrishan v. Radhakrishan. In the case of Harikrishan (supra) the application of the auction purchaser under R.95 of O.XXI C.P.C. was allowed by the execution court and the objection of the appellant in that appeal was overruled. He preferred a first appeal before this Court against the order of the execution Court. Respondent to that first appeal raised a preliminary objection that the appeal was not legally maintainable. A division Bench of this Court upheld the said objection. Desai J. who delivered the judgment on behalf of the Bench observed as follows (at p. 252): - "The question was essentially a question between the respondents, and the court, after confirmation of the sale the respondents were entitled to be put in possession of the property by the Court and nobody could object. Therefore, the question could not be said to be question between one party and another. It may be that under the amendment made to S.47 by the State of Uttar Pradesh an auction-purchaser is a party, but that does not settle the question. Therefore, the question could not be said to be question between one party and another. It may be that under the amendment made to S.47 by the State of Uttar Pradesh an auction-purchaser is a party, but that does not settle the question. It is not enough that he is a party; the question raised by him should be a question between him (One party) and another and we are of the opinion that whether he should be put in possession of the property is not a question between him and any other party but a question between him and the Court. Then S.47 applies only if a question between one party and another relates to execution, discharge or satisfaction of the decree, but the present question cannot be said to be of that nature, because the respondents have already paid the price of the property purchased by them and thereby satisfied the decree obtained by the decree-holder. The question of delivery of possession to an auction purchaser has now nothing whatsoever to do with the execution, discharge or satisfaction of the decree. A decree is executed, and discharged or satisfied when the judgment debtors property is put to auction, somebody purchases it and deposits the sale price, and it is paid to the decree-holder". 14. The decision of the Division Bench in the case of Harikrishan ( AIR 1957 All 251 ) (supra) would have been ordinarily binding on me. However, for reasons stated hereinafter I am relieved of the responsibility to decide this execution second appeal on the basis of that case. There was considerable controversy between the High Courts in India on two questions relating to the interpretation of S. 47 C.P.C. In the first place the (Courts) differed in the question as to whether an auction purchaser could not be deemed to be a party to the suit or his representative within the meaning of the said expression as used in S.47 C.P.C. It was next held that the question of delivery of possession to the auction purchaser under O.XXI, R.95 C.P.C. was not a question relating to the satisfaction and discharge of a decree. On these two grounds the view taken by some of the courts was that the only remedy of an auction purchaser when an application under O.XXI, R.95 C.P.C. had been dismissed by the execution court, was to file a separate suit for possession. A contrary view was taken by the Calcutta High Court in AIR 1926 Cal 798 (FB), Kailash Chandra Tarafdar v. Gopal Chandra Poddar. This view was also followed by the Madras High Court. The matter was considered by the Supreme Court in AIR 1973 SC 2423 , Harnandrai Badridas v. Debidutt Bhagwati Prasad. The Supreme Court agreed with the view taken by the Calcutta High Court in Kailash Chandra Tarafdars case and dissented with the view expressed by this Court and other High Courts which had taken a contrary view. The Supreme Court was of the view that a liberal interpretation was to be placed on the provisions of S.47 C.P.C. A.K. Mukerji J. who delivered the judgment of the Supreme Court observed as under (at p. 2426): - "Section 47 in our view should be construed liberally. As far back in 1892 (1892) 19 Ind App 166 (PC) the Privy Council spoke strongly in favour of putting a liberal construction on S.244 of the Civil P.C. of 1882 which corresponded to present S.47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, (1918) 45 Ind App 54 : (AIR 1917 PC 121). If a liberal construction be put upon S.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. 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 it the judgment debtor offers any resistance 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." 15. In view of the law declared by the Supreme Court which is binding on this Court the decision of the Division Bench of this Court in the case of Harikrishan ( AIR 1957 All 251 ) (supra) is no longer good law. It has, therefore, to be held that the auction purchaser must be deemed to be a party to the suit and if any question is raised by the judgment debtor at the time of delivery of possession concerning the right purchased by the auction purchaser or if he offers any resistance to the delivery of possession the objection must be deemed to be questions relating to execution, discharge and satisfaction of the decree. 16. Were is another reason which supports the conclusion. S.47 of the C.P.C. was amended by the U.P. Act No. IV of 1954 by means of this amendment explanation (2) was added to the Section in the following terms: - "For purpose of this section a purchaser at auction sale in execution of the decree shall be deemed to be a party to the suit in respect of the property purchased by him." This amendment was superseded by the Central Act No. 66 of 1956. The amended explanation introduced by the Central Act No. 66 of 1956 reads thus: - Explanation: For purposes of this Section, a plaintiff whose suit has been dismissed, a defendant against whom the suit has been dismissed and purchaser at sale in execution of a decree are parties to the suit." 17. The purport of the U.P. Amendment as well as the amendment introduced by the Central Act is that an auction purchaser, irrespective of the fact whether he himself is eo nomine party to the suit or not, is deemed to be a party by fiction of law. The view taken by this Court that auction purchaser was a stranger to the suit for purposes of S.47 C.P.C. thus stands overruled by legislation. 18. Referring to the amendments in S.47 the Supreme Court observed in the case of Harnandrai Badridas ( AIR 1973 SC 2423 ) (supra) that all questions arising between an auction purchaser and the judgment debtor must now be determined by the executing court and not by a separate suit. 19. The objection before the execution court filed by respondents 2 to 5 that they had any title independent of Sir Mohd. 19. The objection before the execution court filed by respondents 2 to 5 that they had any title independent of Sir Mohd. Yakubs own share in the property in dispute has not been accepted by the Court of appeal. The said Court has found that the respondents 2 to 5 were legal representatives of the deceased judgment debtor. 20. For the reasons stated above the auction purchaser appellant is entitled to obtain actual possession over the property in dispute under O.XXI. R.95 C.P.C. 21. The result is that this execution second appeal succeeds and is hereby allowed. The judgment and decrees of the Courts below are set aside. It is held that actual delivery of possession in terms of R.95 of O.XXI C.P.C. shall be delivered to the appellant. Respondents 2 to 5 shall pay costs of this second appeal to the appellant. Appeal allowed.