1. In the suit the claims made by the plaintiff were for a declaration that certain plots of land set out in Ex. H belonged to the plaintiff for recovery of possession of two plots 1-B and 1-D from the defendant and an injunction restraining him from interfering with the plaintiffs' possession of other plots. The first Court decreed the suit in favour of the plaintiff and the appeal to the lower appellate Court was dismissed. The defendant presents this second appeal and contends (1) that a suit does not lie by reason of the provisions of Section 47, Civil Procedure Code, and (2) that on account of the dismissal of an execution application filed by the first plaintiff against the defendant all remedies in the suit are barred.
2. The facts shortly are as follows: - An adult and two minor members of a Mudaliar family owned certain properties which they mortgaged to the second plaintiff on 26th January, 1923. The mortgagee filed a suit and a decree was passed in O.S. No. 302 of 1927 on 23rd January, 1928. On 1st May, 1931, in execution of the decree the properties were put up for sale and were purchased by the second plaintiff, the sale certificate Ex. C being granted on 26th June, 1931. Delivery of the properties was obtained except one plot 1-B. The defendant obstructed and resisted possession and in consequence the second plaintiff filed a petition to remove the resistance, which was dismissed. On 6th September, 1931, by Ex. A the second plaintiff sold all his rights in and his claim to the properties so purchased p to the first plaintiff. This plaintiff filed an execution application on 17th October, 1931, to remove the resistance of the defendant A in regard to plot 1-B which application was dismissed on 6th January, 1932. It is now necessary to refer to another suit S.C.S. No. 297 of 1928 filed by a stranger against the adult member only of the joint family who was one of the mortgagors in the earlier mentioned mortgage and a decree was obtained. This decree was passed on 3rd May, 1928, a date subsequent to the decree in the earlier mortgage suit. In execution of that decree, the properties belonging to the Mudaliar family were put up for sale and were purchased by the defendant on 20th January, 1930, on which date the sale certificate was granted. The proceedings in respect of the Small Cause suit and the execution for sale of the properties thereunder were subsequent to the decree in the mortgage suit and during the proceedings arising thereout.
3. The plaintiff not having obtained possession of plots 1-B and 1-D filed the present suit on 19th February, 1932. I propose now to deal with the points of objection made under Section 47 of the Civil Procedure Code, the relevant provisions of which are as follows:
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
4. When the suit and the appeal from the Court of first instance were before the lower appellate Court, this point having been raised, a decision was given in favour of the present respondents, namely, the plaintiffs, following the decisions, Meyyappa Chetti v. Meyyappan Servai (1921) M.W.N. 698 and Basappa Budappa Halavalad v. Bhimangowda Shiddangowda Patil I.L.R.(1927) 52 Bom. 208. Since the disposal of this matter by the lower appellate Court, the point has come before their Lordships of the Privy Council in Parmeshari Din v. Ram Charan (1937) 2 M.L.J. 359 in which it was held that where a person obtains property by a transfer from the defendant pendente lite, he should be treated as a representative in interest of the transferor-defendant and he is bound by the result of the decree. And the mere circumstance that he got possession from the defendant in pursuance of a transfer which was invalid as against the plaintiff cannot detract from their rights under the decree. Defendant purchased in the Court auction in execution of the Small Cause decree, the property subject to the mortgage and which belonged to the defendants in the mortgage suit, namely, the members of the Mudaliar family and thereby became the representatives of those parties to the suit. In my view therefore the defendant has become, within the contemplation of Sub-section (1) of Section 47, the representative of a party to the suit. The first plaintiff has purchased from the second plaintiff that person's interest and he has therefore become his representative. The effect of the decision of their Lordships of the Privy Council in Parmeshari Din v. Ram Charan ( (1937) 2 M.L.J. 359 is dealt with in Gopal Sattu Tippe v. Dnyanu Maruthi Khade I.L.R. (1938) Bom. 649 in the observations of Sir Charles Beaumont, the Chief Justice, in the course of his judgment with which I may say with respect I entirely agree. There can be no doubt as to the representative character of the parties in the present suit. Their position is covered, in my opinion, by Section 47, Sub-section (1). The result must be that the present suit is forbidden by that section. The earlier application E.A. No. 715 of 1931 was made under the provisions of Order 21, Rule 97 which provides the procedure when obstruction is made to a person who attempts to obtain possession of property. It was dismissed on 6th January, 1932, not on the merits but upon the grounds that the obstruction took place on 2nd August, 1931 and the previous application by the first plaintiff's predecessor-in-title had not been made within 30 days of the obstruction under the provisions of Article 167 of the Limitation Act. Argument at some length has been addressed by learned Counsel on behalf of the respondents regarding the effect of Rules 97, 98, 101 and 103 of Order 21 with which I do not consider it necessary to deal.
5. The learned Counsel on behalf of the respondents applies to me that in the event of my coming to the conclusion that the present suit was prohibited by the provisions of Section 47, that it should be treated as an application under Order 21 Rule 95, Civil Procedure Code by reason of the provisions of Sub-section (2) of Section 47. Learned Counsel on behalf of the appellant has conceded that on 19th February, 1932, the date when this suit was filed, the plaintiffs were then entitled to have is sued an application under Order 21, Rule 95 of the Civil Procedure Code. I can see no objection to such an application being filed or that there was any further obstacle by way of limitation or otherwise which would have prevented it. The objection which has been taken is one of no merits as the first plaintiff acquired from the second plaintiff properties which were sold under the mortgage decree, the defendant's claim being under a sale in execution of a decree passed against the mortgagor of the mortgage whose properties must have been subject to the charges under that mortgage. The objection relating to the procedure which is made is one of mere technicality and not on the merits. In the first instance therefore I hold that the respondents will have leave to treat the proceedings in the suit as an application made under Order 21, Rule 95, Civil Procedure Code. If any additional courts fee is payable by reason of the direction that I have just given, I direct that it should be paid within 28 days from to-day.
6. I now come to the second point, namely, that the execution application 715 of 1931 prevents relief being granted. In my view it does not. The dismissal was one not upon the merits, the application was to prevent resistance by the obstructor and to attempt to gain possession. If the plaintiffs are entitled to possession, the continuance by the defendant in occupation of the premises is therefore a wrong of which the plaintiffs complain de die in diem. Since it is conceded that on the date when the plaintiff filed the suit, the plaintiffs were entitled then to have taken proceedings under Rule 95, it must follow that the objection raised regarding the dismissal of the execution application 715 of 1931 fails.
7. Objection was made that on the merits and the facts, the learned Subordinate Judge had committed errors in the decision at which he had arrived. The properties, the subject of the suit are set out in the plan Exhibit H, which was filed with the plaint. The first plaintiff as plaintiff's first witness in the witness-box identified the plan as that which. Was filed in the suit. The plaint sets out the claims regarding the properties mentioned therein and delineated in the plan. When formally identifying the plan, that witness was also testifying that the plan was accurate. No cross-examination was directed by the defendants learned Counsel, in the Court of first instance suggesting that the plan was inaccurate and contained omissions or additions and did not correctly set out the actual position of the properties. Learned Counsel to-day before me wishes to suggest that the plan is inaccurate. In the absence of any attack being made upon it in the trial Court I cannot listen to any argument in that respect to-day. The learned District Munsiff and the learned Subordinate Judge who have examined all the documents and all the evidence have both come to the conclusion that the plaintiff is entitled to the relief which he sought in the suit. It is unnecessary for me to repeat all those matters. In my view they have both come to the correct conclusion.
8. It was argued that so far as plot 1-D is concerned that particular matter was entirely ignored and not dealt with by the learned Subordinate Judge. His judgment is quite clear that he did fully consider the matter and decided against the contentions of the defendants.
9. A claim was also made to an easement in regard to plot 1-C. That claim was rejected and rejected on the facts which sitting here I do not propose to question or interfere with.
10. The result of the above is that the appeal is dismissed, but the papers will be remitted to the Court of first instance in order that the proceedings may be regularised in accordance with the view I have expressed. The respondents are entitled to their costs in this appeal. Leave to appeal is refused.