1. Nammalwar Chetti in whose favour a mortgage had been executed under a document, dated 25th June 1884 with respect to the properties to which the present appeal relates, brought a suit (O.S. No. 172 of 1887) on that mortgage, and having obtained a decree brought this property to sale in 1890 and purchased certain of the items of property while others were bought by Saminada Tevan. Of the several items of property thus purchased, Nos. 8 to 12 were sold by the purchasers to the brother of Uthumansa Rowthen and Ahammad Rowthen, the 1st and 2nd respondents, while items 13 and 14 were sold by Nammalwar to Saminada and by him to the father of the 3rd respondent. The 1st, 2nd and the father of the 3rd respondent were duly put in possession of the items of property purchased by them. In 1897 Kasinatha Iyer, the present appellant, brought a suit (267 of 1897 on the file of the District Munsif of Kumbakonam) on a mortgage document, dated the 8th July 1884, which had been executed in his favour with, respect to certain of the properties entered in the mortgage deed of the 25th June 1884 in favour of Nammalwar. The present 1st and 2nd respondents were respectively the 12th and 13th defendants in that suit, while the father of the 3rd respondent was the 16th defendant. The plaintiff (present appellant) obtained a decree, in which it was directed inter alia that the present respondents 1, 2 and 3 should pay him a sum of over Rs. 1,500, and that, in default of payment, items 8 to 14 of the property mentioned in the mortgage document of the 25th June 1884 together with other properties should be sold subject to the prior charge of Rs. 1,500 together with interest on the land under that mortgage. The present appellant, having purchased the land at the sale held in execution of the decree, attempted to get possession, but was obstructed by the 1st, 2nd, 3rd and 4th respondents. He accordingly presented a petition to the District Munsif under Sections 318 and 335, C.P.C. The District Munsif having dismissed his petition, and the District Judge having on appeal declined to interfere, this appeal against the appellate order has been preferred here.
2. In his petition to the District Munsif the appellant stated that the 4th respondent was in possession of a thatched house which belonged to the defendants 1 to 7 in O.S. No. 267 of 1897, but which the 4th respondent was living in under a right obtained from them. It was alleged that these defendants had instigated the 4th respondent to prevent the appellant getting possession of the house. The 4th respondent did not appear before the District Munsif and the question as to the house which he is in possession of is not alluded to in his order. The District Judge held that the order relating to him must be considered to have been passed under Section 335, C.P.C. and that there was consequently no appeal against that order. The District Judge appears to be right. The 4th respondent claims under an alienation made by the defendants 1 to 7 in O.S. No. 267 of 1897 after the date of the decree in that suit. As this respondent is not a judgment-debtor, and as it has not been shown that he has resisted the attempt of the appellant to get possession on behalf of any one-of the judgment-debtors, it must be held that his case comes under Section 335 of the C.P.C. and that there was consequently no appeal against the order of the District Munsif in so far as it related to him.
3. The District Judge has further held that there is no appeal against the order of the District Munsif in so far as it affects respondents 1, 2 and 3. I cannot uphold this decision. Even if the plaintiff, the purchaser of the lands, were not the decree-holder, I am decidedly of opinion that, following the decisions Prosumo Kumar Sanyal v. Kali Das Sanyal I.L.R. 19 C. 683 Ishan Chandra Sirkar v. Beni Madhw Sirkar I.L.R. 24 C. 62 and Dwar Buksh Birlear v. Fatik Jali I.L.R. 26 C. 250 he must be held to be a representative of the judgment-creditor. In the present case the purchaser is the decree-holder, the plaintiff in the suit. It would be impossible to hold that having been a party to the decree he ceased to be a party because he purchased the property at the sale, held in execution. The only point therefore to be decided is whether the question as to which of the parties to the present proceedings are at issue, is one relating to the execution, .discharge, or satisfaction of the decree. (Section 244, C.P.C.) The present application, being one by the purchaser of the lands to be put in possession, must be held to be a step in aid of execution vide Moti Lal v. Makund Singh I.L.R. 19 A. 477 Sariatoolla Moolla v. Raj Kumar Roy I.L.R. 27 C. 709 and Lakshmanan Chettiar v. Kannammal 24 M. 185 and such being the case, the question at issue is clearly one relating to the execution of the decree and as has already been pointed out, it is between the parties to the decree. The order of the District Munsif was therefore one passed under Section 244, C.P.C., and an appeal lay from it.
4. On the merits I agree with the District Judge. The direction in the decree in O.S. No. 308 of 1897 was that the property should be sold subject to the prior charge on it of the amount due under the mortgage document of the 25th June 1884. It follows that the respondents 1, 2 and 3 cannot be ousted till the total amount due under that document is paid off. This second appeal is dismissed with costs.
Bhashyam Aiyangar, J.
5. I am also of the same opinion. The decree-holder in execution of his decree which directed the sale of certain properties (mortgaged to him by defendants Nos. 1 and 3 and the ancestors of defendants Nos. 2, 4, 5, 6 and 7) subject to a prior charge thereon of Rs. 1,500 (together with interest) in favour of the 12th, 13th and 16th defendants became the purchaser and now seeks to recover possession of the properties purchased under Sections 318 and 334, C.P.C., from the 12th and 13th defendants and the legal representatives of the 16th defendant. The question that is raised is whether, under the terms of the decree, he is entitled to be put into possession without paying the amount of the prior charge. The defendants dispossessed being left at liberty to bring a separate suit for enforcing the charge in their favour. In my opinion, the question thus raised between the decree-holder purchaser and the said defendants relates within the meaning of Section 244(c), C.P.C. to the execution or enforcement of the decree against those defendants, and the order appealed against is not the less an order under Section 244, because it is also passed under Sections 318 and 334, neither of which is specified in Section 588.
6. I am clearly of opinion that, according to the right construction of the decree, the decree-holder-purchaser cannot execute or enforce the decree against the defendants in possession by ousting 3 them without redeeming the prior charge.