(1) This is an appeal filed by defendant 1 as against the order of remand passed by the Subordinate Judge of Tenali in Appeal Suit No. 113 of 1949.
(2) The suit was dismissed by the District Munsif of Repalle on the ground that it was not maintainable and that the remedy of the plaintiff was only by an application under S. 47, Civil P. C. For the purpose of appreciating the contention based on S. 47, Civil P. C., it is sufficient to set out a few relevant facts.
(3) Venkateswarlu, respondent 1 herein purchased an undivided 2/3rd share of the suit properties in execution of a money-decree as against the appellant and his sons for Rs. 518/- on 29-6-1936. The sale was confirmed on 31.7.1936, and though he applied for delivery on 28.6.1939, it was dismissed as not pressed. The present suit is for recovery of possession of 3 acres 5 cents out of the schedule land or in the alternative for partition and recovery of possession of 2/3rd share of the plaint schedule land.
(4) The main contention addressed on behalf of the appellant is that Venkateswaralu, the decree-holder-auction-purchaser ought to have applied for possession under O. 21, R. 95 or R. 96, Civil P. C., and that as he did not obtain delivery of possession, his suit for partition is not maintainable.
(5) Rule 95 of O. 21 runs in the following terms :
'Where the immoveable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under R. 94, the Court shall, on the application of the purchaser order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and if need be, by removing any person who refused to vacate the same.'
It provides for delivery of actual possession of the property from the judgment-debtor. R. 96 enacts that if the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under R. 94, the Court shall order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and by proclaiming to the occpant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.
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, 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. R. 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. So there are no rules provided for the auction-purchaser of an undivided share obtaining delivery of possession.
(6) If a decree of a specific item of property is obtained, O. 21, R. 35, Cl. (1) provides for the delivery of possession of that property. If the property decreed is in the occupancy of a tenant or other person entitled to occupy the same under the judgment-debtor. R. 36 provides, for the procedure to be followed. O. 21 R. 35 Cl. (2) enacts that if the decree is for joint possession of immoveable property, such possession shall be delivered by affixing copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum or other coustomary mode at some convenient place the substance of the decree. There is no such provision made for obtaining delivery of possession by an auction-purchaser of an undivided.
(7) The point which arises for consideration in the present case is directly governed by a series of decisions of the Madras High Court In -- 'Yelumalai Chetty v. Srinivasa Chetty', 29 Mad 294 (A) it was held as follows :
'The only right acquired by the court sale against defendant 2 was a right to effectuate the sale by a suit for partition of the joint property of the co-parceners and the delivery to the plaintiffs of what might be allotted to the share of defendant 2 at the partition.'
'It was not competent to the Court in the circumstances of this case, on a mere application for execution by the purchaser, to enforce the right of the purchaser by an order for partition. Consequently no orders of the kind contemplated by S. 318, Civil P. C. (corresponding to O. 21, R. 95) could have been passed in favour of the plaintiff's in the circumstances of this case. It follows that S. 244 (corresponding to S. 47) could not have been a bar to a suit, brought by these plaintiff's for partition.'
(8) This decision was followed in -- 'Hassan Ammal Bibi v. Moideen Rowther', AIR 1916 Mad 430 (B) by Sir John Edward Power Wallis, Kt., C. J., and Seshagiri Iyer J. The learned Chief Justice no doubt stated that it was unnecessary to consider whether O. 21, R. 96 was applicable to a case where the judgment-debtor, whose interest was purchased, was in joint possession with a third party because he took the view that the title having vested under S. 65 and O. 21, R. 94 the suit for partition without obtaining any formal delivery of possession was maintainable. Seshagiri Iyer J., however, held at p. 432 that R. 96 has no application to cases of co-tenants. He observed :
'The rule itself speaks of the possession of 'tenants' and others entitled to possession. These latter words would 'prima facie' apply only to persons who claim possession in their own right, and not to those who are entitled to hold possession for themselves and for others'.
The same view was taken in -- 'Rama Row v. Sivanarayana', AIR 1919 Mad 949 (C), viz., that S. 47, Civil P. C., did not apply and that the petitioner's remedy was only to bring a suit for partition and delivery of their 1/3rd share. Reilly J., followed these decisions in -- 'Muhideen Abdul Kadir v. Chidambaram Chettiar', 1931 Mad WN 1176 (D).
(9) The learned advocate for the appellant, Mr. Sitarama Sastri relied on the decision of Horwill J., in -- 'Bala Lingayya v. Sunku Nallayya', AIR 1944 Mad 62 (E), as supporting his contention that S. 47 was applicable. There is no discussion of this question in the decision. The passage relied on is in the following terms :
'When the appellant tried to obtain possession he was obstructed by the respondent. He sought for the removal of that obstruction, but his petition was dismissed on the ground that his proper remedy was to file a partition suit, such as was suggested in -- '9 Mad LW 81 (C)' and -- 'N. A. Pokker v. K. K. Patumma', 29 Mad 296 (F)'. Instead of taking the matter in appeal, the appellant filed the suit out of which this Second Appeal arises'.
The reference to '29 Mad 296 (F)', is apparently a mistake for the decision in '29 Mad 294 (A)'. From a reading of the judgment, I am unable to see how and why the learned Judge did not follow the two Bench decisions of the Madras High Court. In my opinion, the decision of Horwill J., is wrong and is not consistent with the Bench decisions of the Madras High Court.
(10) The learned Advocate for the appellant next relied on the observations of Ramesam J., as p. 806 in -- 'Abdul Aziz Saheb v. Chokkan Chettiar', AIR 1935 Mad 803 (FB) (C). Those observations have really no bearing on this question as Ramesam J., held that delivery might have been obtained of the lands as also the house in respect of which there was no obstruction. The learned Judge has not considered the correctness or otherwise of the decisions in '29 Mad 294 (A)', and AIR 1916 Mad 430 (B)', or the provisions of O. 21 R. 95 and R. 96, Civil P. C. So these observations ought not be read out of their context as supporting the contention of the appellant.
(11) The next case relied on is the decision of a single Judge in -- 'Thakursi Raisi v. Fida Hussain', AIR 1927 Sind 199 (H). Though the learned Judge referred to the decision in 'AIR 1916 Mad 430 (B)', he overlooked the observations of Seshagiri Iyer J., wherein the learned Judge expressed his opinion that the provisions of O. 21, R. 96 are not applicable where the judgment-debtor purchased only an undivided share. I do not agree with the decision of the Sind Court that as far as possible consistent with Rr. 95 and 96 of O. 21, Civil P. C., possession might be delivered to a purchaser of an undivided share.
(12) There is only one other decision which remains to be referred to, namely, the Full Bench decision of the Oudh Court in -- 'Gulab Khan v. Ataullah', AIR 1928 Oudh, 251 (FB) (I). The first question that was referred to the Full Bench was
'whether the delivery of possession by means of beat of drum under O. 21, R. 95, Civil P. C., to an auction - purchaser who has purchased a share in the property so sold, can be considered to be a valid and effective delivery of possession sufficient to give to the auction-purchaser a fresh start for limitation'.
There are no doubt observations of the learned Judges of the Full Bench to the effect that such possession as the nature of the property is capable of might be delivered under O. 21, R. 95. I prefer to follow the Bench decision of the Madras High Court in preference to the Full Bench Judgment of the Oudh Court and hold that the provision of O. 21, R. 95 and R. 96 do not apply to a case of this description and that S. 47 is, therefore, not attracted.
(13) I, therefore, confirm the judgment of the Subordinate Judge and hold that the suit for partition is maintainable and that S. 47, Civil P. C., is no bar to the maintainability of the suit.
(14) As regards the question whether the respondent is entitled to rely on the agreement entered into with Punnamma and recover possession of the specific land, I am clearly of the opinion that the Subordinate Judge is wrong, Punnamma, defendant 1's wfie, claimed that she was entitled to the property and filed a claim petition and it was dismissed. A suit was, thereafter, filed and it was also dismissed. So the respondent is not entitled to recover possession of the property or any agreement entered into with her. I, therefore, disagree with the conclusion of the Subordinate Judge contained in para. 12 of his judgment. As already stated, the respondent is entitled to sue for partition and recover his 2/3rd share of the property. This appeal illustrates how a cantankerous judgment-debtor may cause obstruction to the decree-holder realising the fruits of his decree for nearly 10 years.
(15) In the result, the Civil Miscellaneous Appeal fails and is dismissed with costs, of the respondents.
(16) This Judgment covers the other four appeals C. M. A. Nos. 327, 328, 329 and 330 of 1951, and they are also dismissed with costs. No leave.
(17) Appeals dismissed.