Skip to content


Subbaya Pillai Lekshmanan Pillai Vs. Narayani Subhashini - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S.A. No. 17 of 1971
Judge
Reported inAIR1972Ker162
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantSubbaya Pillai Lekshmanan Pillai
RespondentNarayani Subhashini
Appellant Advocate K. Sudhakaran, Adv.
Respondent Advocate K.S. Paripoornan, Adv.
DispositionAppeal dismissed
Cases ReferredProsunno Kumar Sanyal v. Kali Das Sanyal
Excerpt:
.....one attempt on the execution side to get recovery of possession of the property in pursuance of the sale certificate and failed. 3. the question is whether a person like the appellant, viz. 4. the main decision on one side is the full bench decision of the patna high court of five judges in tribeni pra-sad singh v. ramasray prasad chaudhari (air 1931 pat 241 (fb)). and other high courts like the high courts of allahabad, bombay, lahore and rangoon the chief court of oudh, the judicial commissioner's court of himachal pra-desh, etc. , that until recovery of possession is also obtained in pursuance of the sale certificate, the decree is not satisfied, so that the suit to recover possession in pursuance of the sale certificate will be hit by section 47, since the execution and discharge of..........second appellate judge who has referred to all the main decisions on the question from the several high courts in india.4. the main decision on one side is the full bench decision of the patna high court of five judges in tribeni pra-sad singh v. ramasray prasad chaudhari (air 1931 pat 241 (fb)). and other high courts like the high courts of allahabad, bombay, lahore and rangoon the chief court of oudh, the judicial commissioner's court of himachal pra-desh, etc. have followed this view. the view is that in such a case the execution and satisfaction of the decree came to aa end by the issue of the sale certificate and thereafter no question of execution or satisfaction of the decree remains, so that a suit for recovery of possession in pursuance of the sale certificate is not hit by.....
Judgment:

Raghavan, Ag. C.J.

1. The plaintiff who succeeded before the trial court but lost before the lower appellate court and the second appellate Court is the appellant before us; and the appeal is by leave from the second appellate Judge. And the 'question we have to consider in the appeal lies within quite a narrow compass.

2. The appellant is the decreeholder auction-purchaser; and he obtaineda sale certificate in his favour. He made one attempt on the execution side to get recovery of possession of the property in pursuance of the sale certificate and failed. Thereafter, he filed the suit which has given rise to the present appeal. As we have already stated, the trial court decreed the suit, while the lower appellate court and the second appellate Judge dismissed the same.

3. The question is whether a person like the appellant, viz., a decree-holder auction-purchaser, who obtained a sale certificate in his favour, is debarred by Section 47 of the Code of Civil Procedure from filing a suit for possession of the property purchased by him. On this question, there is a fairly long discussion by the second appellate Judge who has referred to all the main decisions on the question from the several High Courts in India.

4. The main decision on one side is the Full Bench decision of the Patna High Court of five Judges in Tribeni Pra-sad Singh v. Ramasray Prasad Chaudhari (AIR 1931 Pat 241 (FB)). And other High Courts like the High Courts of Allahabad, Bombay, Lahore and Rangoon the Chief Court of Oudh, the Judicial Commissioner's Court of Himachal Pra-desh, etc. have followed this view. The view is that in such a case the execution and satisfaction of the decree came to aa end by the issue of the sale certificate and thereafter no question of execution or satisfaction of the decree remains, so that a suit for recovery of possession in pursuance of the sale certificate is not hit by Section 47 of the Code. For reaching this result, the main ground relied upon is the language, of Order XXI, Rule 72 (2) and the expression 'relating to the execution, discharge or satisfaction of the decree' in Section 47(1).

On the other hand, there are several decisions of the other High Courts taking the other view, viz., that until recovery of possession is also obtained in pursuance of the sale certificate, the decree is not satisfied, so that the suit to recover possession in pursuance of the sale certificate will be hit by Section 47, since the execution and discharge of the decree has not yet come to a close. The Courts which take this view are the High Courts of Madras, Calcutta, Madhya Pradesh, Nag-pur, Travancore and Travancore-Cochin and the Judicial Commissioner's Courts of Sind and Peshawar. in addition to these Several decisions, two Division Bench rulings of our High Court have also been brought to our notice, where, however, the learned Judges have had no occasion to Consider this question directly. The leading cases taking this latter view are the Full Bench decision of three Judges of the Madras High Court in Krishna lyer v. Subramania Iyer (AIR 1939 Mad 369) the Full Bench decision of five Judges or the same High Court in Annamalai v. Ramasami, (AIR 1941 Mad 161 (FB)) and the Full Bench decision of the Travancore High Court, again of five Judges, in Rasavu Muhammathu Ravuthar Muharnma-thu Ussan Sahib v. Meera Pillai Sheka-dhavu (11 Trav LT 776).

Similarly, there is a decision of the Travancore-Cochin High Court by a Division Bench in Neelakanta Ayyar Subramania Ayyar v. Nilacanta Pillai Vasudevan Pillai (1949 Trav-Co LR 90). The two decisions of our High Court are State of Travancore-Cochin v, Lekshmi Animal Meenakshi Ammal (1957 Ker LT 1094) = (AIR 1958 Ker 309) and People's Co-operative Bank Ltd. v. Parvathy Ayyana Pillai (1958 Ker LT 925) = (AIR 1959 Ker 133). in the earlier of these two decisions, the Full Bench decisions of the Madras High Court have been followed; and in the later decision, the earlier decision has been followed. in addition to all these decisions, there is an old decision of the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal, (1892) ILR 19 Cal 683 (PC), where their Lordships of the Privy Council have considered the scope of Section 244 of the old Code of Civil Procedure, the same as Section 47 of the present Code. There the facts were that there was a suit for setting aside a sale of a zemindari against a stranger auction-purchaser and the suit was dismissed by Both the Subordinate Judge and the High Court of Calcutta. The matter was taken up to the Privy Council; and before the Privy Council, the question raised was whether Section 244 was a bar to such a suit. The Privy Council answered the question in the affirmative, thus upholding the decision of the lower courts. The Privy Council has observed that the Courts in India have not placed any narrow construction on the language or Section 244 (Section 47) and when a question arose as to the execution, discharge or satisfaction of a decree between the parties to the suit in which the decree was passed, the fact that the purchaser who was not a party to the suit was interested in the result had never been held to be a bar to the application of the section.

5. Section 47 is in the statute book for a purpose, viz., to prevent multiplicity of suits, and the way the section has been interpreted by the' Madras High Court, the Travancore-Cochin High Court and the other High Courts which take the same view, is only in conformity with that intention. If the other view, the view of the Patna High Court, that the execution, discharge and satisfaction of the decree come to an end by the issue of a sale certificate is accepted, the purpose of this section will be lost to a considerable extent. Moreover, the view of the Madras High Court has been there for over eighty years, because Patanjali Sastri, J. has stated in (AIR 1941 Mad 16] (FB)) that that view had already been accepted for over 50 years. That was in 1941; and another 30 years have passed since then. To upset this procedural law at this stage will create more injustice than justice. And this is therefore an eminently fit case for applying the principle of stare decisis.

6. At this stage, the counsel of the appellant has brought to our notice that he made an application before the second Appellate Judge to convert the suit into a proceeding under Section 47. He has also submitted that he filed a petition for reviewing the order of the executing court dismissing the execution petition. The second appellate Judge had not decided this petition, since he granted leave to appeal to a Division Bench, The question has therefore been raised before us. Under Section 47(2) a suit can be converted into a proceeding in execution subject only to any objection as to limitation or jurisdiction. in the plaint in the present suit itself, the averment is that the execution petition filed by the appellant before the executing court was dismissed as it was barred. And against the dismissal of the execution petition, there was no appeal, so that that order became final. And it was thereafter that the suit giving rise to the appeal was filed. Therefore, this prayer for conversion cannot also be allowed. The petition for reviewing the order in execution should not have beea filed before this Court: it should more properly have been filed before the executing court. Thus the prayer for review cannot also be allowed.

7. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //