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Ramaswami Chettiar and ors. Vs. Meyyappan Servai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1939Mad740; (1939)2MLJ353
AppellantRamaswami Chettiar and ors.
RespondentMeyyappan Servai
Cases ReferredIn Kunhamed v. Chathu I.L.R.
Excerpt:
- - for reasons which i shall indicate we are of opinion that the first contention is well founded. the appellants say that the case does not fall within section 47, because it is not a matter which relates to the execution, discharge or satisfaction of a decree and in any event an auction purchaser cannot be regarded as the representative of the decree-holder or judgment-debtor in a case like this. , refused to follow these cases, although he was clearly bound by them, because he considered that there was a very strong tendency to give a wide application to section 47 and to bring within its scope questions arising between the parties to the suit and the auction-purchaser......the amount for which the property had been sold was paid into court and was withdrawn by the decree-holder. the auction-purchaser died before the sale was set aside and the appellants are his legal representatives. they applied for the refund of the money and obtained an order for repayment from the district munsif in whose court the execution proceedings had been instituted. the question which we have to consider is whether the district munsif's order can be made the subject-matter of an appeal.2. the sale took place on the 24th june, 1922, and was confirmed on the 25th of the next month. the auction-purchaser then paid into court the money and it was drawn out by the decree holder immediately. as the result of the application of the judgment-debtor in that behalf the sale was set.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellants are the legal representatives of a person who purchased property at a sale held in execution of a decree. The sale was set aside on the ground of irregularity in its conduct. The amount for which the property had been sold was paid into Court and was withdrawn by the decree-holder. The auction-purchaser died before the sale was set aside and the appellants are his legal representatives. They applied for the refund of the money and obtained an order for repayment from the District Munsif in whose Court the execution proceedings had been instituted. The question which we have to consider is whether the District Munsif's order can be made the subject-matter of an appeal.

2. The sale took place on the 24th June, 1922, and was confirmed on the 25th of the next month. The auction-purchaser then paid into Court the money and it was drawn out by the decree holder immediately. As the result of the application of the judgment-debtor in that behalf the sale was set aside on the 17th December, 1923. The decree-holder and the appellants (the legal representatives of the auction-purchaser who had died ) appealed to the District Judge. The appeals were dismissed and a second appeal to this Court met with the same fate. The appellants were allowed to file an appeal under Clause 15 of Letters Patent and this appeal was also dismissed, the final decision being given on the 13th September, 1929. It was not until the 29th August, 1932, that the appellants applied to the execution Court for an order under Order 21, Rule 93 of the Code of Civil Procedure directing the decree-holder to refund the amount due to them as the result of the setting aside of the sale. The decree-holder resisted the application on the ground that it was barred by the law of limitation. His contention was that time began to run from the date of the order of the District Munsif setting aside the sale, namely, the 17th December, 1923. The District Munsif, however, held that time began to run from 13th September, 1929, the date of the dismissal of the Letters Patent Appeal and therefore the application was in time. The decree-holder appealed to the Subordinate Judge and also filed an application for revision to this Court in the event of it being held that an appeal did not lie. The Subordinate Judge held that the appeal did lie and allowed it. In his opinion time began to run from the date of the setting aside of the sale by the District Munsif. The appellants then appealed to this Court and the appeal was heard by Horwill, J., who accepted the decision of the Subordinate Judge, but gave a certificate permitting the present appeal. There are really two questions involved in this appeal, namely, (1) whether the order of the District Munsif directing the refund is appealable, and (2) whether time began to run from 17th December, 1923, or from 13th September, 1929. If the first question is answered in the appellants' favour the second question will not need consideration because in that case the order of the District Munsif must stand. For reasons which I shall indicate we are of opinion that the first contention is well founded.

3. An order passed on application filed under Order 21, Rule 93 is not appealable under Order 43. The question then is whether the matter is one which comes within Section 47. If it does the order is appealable. The appellants say that the case does not fall within Section 47, because it is not a matter which relates to the execution, discharge or satisfaction of a decree and in any event an auction purchaser cannot be regarded as the representative of the decree-holder or judgment-debtor in a case like this. It is conceded by the learned advocate for the respondent that the matter is not one which relates to the execution of the decree, but he says it does relate to its discharge or satisfaction. We are unable to accept this argument. As the result of the setting aside of the sale the position was restored to what it was at the time the decree-holder asked for the attachment of the property. The person to whom the property had been sold could no longer be regarded as the auction-purchaser. The sale had gone and he had no further concern with the matter beyond getting back from the decree-holder the money which he had paid, as the purchase consideration. As the result of the order setting aside the sale the decree was left entirely undischarged. Of course, it cannot be denied that the application for refund of the money was a matter arising out of the execution proceedings but it was not a matter relating to the execution, discharge or satisfaction of the decree.

4. This view has been taken by this Court on two previous occasions. In Krishna Bhupati Devu Garu v. Venkataswami (1916) 3 L.W. 105, Sadasiva Aiyar and Moore, JJ., held that an order made under Rule 93 of Order 21 for the repayment of purchase money when the sale has been set aside is not a question between the parties to the suit relating to the execution, discharge or satisfaction of the decree as it has no legal effect on the rights and liabilities as between the decree-holder and the judgment-debtor. In Kunhamed v. Chathu I.L.R.(1886) 9 Mad. 437, Collins, C.J. and Brandt, J., gave a similar decision. Horwill, J., refused to follow these cases, although he was clearly bound by them, because he considered that there was a very strong tendency to give a wide application to Section 47 and to bring within its scope questions arising between the parties to the suit and the auction-purchaser. The auction-purchaser comes within Section 47 when he is standing in the shoes either of the decree-holder or of the judgment-debtor. Unless he can in law be regarded as a representative of either he certainly does not come within the section, and in this case the auction-purchaser cannot be regarded as a representative of the judgment-debtor because the sale has been set aside. According to decisions of this Court he became the representative of the judgment-debtor when he became the auction-purchaser, but as the result of the sale having been set aside he lost that character. The case cannot be brought within Section 47 and therefore the order directing the refund is not an order which is appealable. The appeal will therefore be allowed and the order of the District Munsif restored. The appellants are entitled to their costs here and below.

5. The position with regard to the revision petition filed by the respondent remains to be considered. As the result of his decision on the question whether an appeal lies Horwill, J., dismissed this petition. Although it was dismissed merely on the ground that an application in revision was no longer necessary we consider that the dismissal order must stand. The only contention that can be advanced in support of the application is that the District Munsif misinterpreted the law of limitation. Assuming that the District Munsif was wrong in holding that the period of limitation started to run from the date when the auction sale was set aside it does not mean that the respondent was entitled to have that order revised. If he made a mistake - I do not say that he did - the application would not lie. As it had been often pointed out a mere error of law does not bring a case within the provisions of Section 115 of the Code of Civil Procedure. The application will therefore stand dismissed, but there will be no order here as to costs.


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