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A. Mallari Rao Vs. Sivagnana Vandayar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1944Mad11; (1943)2MLJ391
AppellantA. Mallari Rao
RespondentSivagnana Vandayar
Cases ReferredJainulabdin Sahib v. Krishna Chettiar
Excerpt:
- - the learned district judge dismissed it holding that the obstruction was in good faith and not on behalf or at the instigation of the judgment-debtor, that the dispute did not come under section 47 of the code of civil procedure and that it could be determined only in a suit. but it is contended on behalf of the appellant that the present case is on a different footing from that of a money decree, as here the sale was in execution of a charge decree which is as good as a mortgage decree and that the stranger auction-purchaser in respect of a mortgage decree represents not only the mortgagor but also the mortgagee. we therefore consider that the appellant in this case just like the respondent is a representative of the judgment-debtor and not of the decree-holder......of money.5. we are unable to accept the contention that a distinction can be made between a money decree purchaser and a mortgage decree purchaser. the above cited observation in the judgment of the full bench does not amount to a finding that such a distinction does exist. it is only to the effect that it was not necessary to consider that question in that case. on the other hand, in jainulabdin sahib v. krishna chettiar : air1921mad420 one of the decisions cited on behalf of the appellant himself, it was definitely held that a distinction could not be made on this point between a money decree purchaser and a mortgage decree purchaser. as pointed out in that decision, in the case of a mortgage decree, after the sale is ordered, there is only a right to sell just as there is after.....
Judgment:

Shahabuddin, J.

1. This is a civil miscellaneous appeal against the order of the learned District Judge of West Tanjore dismissing a petition filed by the appellant for directing the delivery of possession of certain properties after removal of obstruction. The appellant purchased these properties at a Court sale held on 10th September, 1935, in execution of a decree dated 27th February, 1926. That decree directed the payment of certain amounts by way of restitution and created a charge in that respect on the properties in question. The Official Receiver of West Tanjore representing the estate of the decree-holder brought these properties to sale. The appellant who purchased them is a stranger Court auction-purchaser. In the meantime the judgment-debtor sold these very properties on 12th March, 1928, to one Subramania Chettiar and from him the respondent purchased them on 23rd April, 1931. When the appellant auction-purchaser went to take delivery of the properties, the respondent resisted. Thereupon the petition under appeal was filed under Order 21, Rule 97 of the Code of Civil Procedure. The learned District Judge dismissed it holding that the obstruction was in good faith and not on behalf or at the instigation of the judgment-debtor, that the dispute did not come under Section 47 of the Code of Civil Procedure and that it could be determined only in a suit.

2. On behalf of the respondent, a preliminary objection has been raised before us. It is said that under Rule 103 of Order 21, the decision of the lower Court is conclusive unless a suit is filed and that therefore no appeal lies against that order. The appellant has in reply to this objection raised two contentions:

(1) The sale to the respondent's vendor having taken place after the decree was passed, the order of the lower Court is not conclusive, as Rule 103 will not apply in virtue of Rule 102; and

(2) though the petition purports to be under Rule 97 of Order 21, the dispute is one coming under Section 47 and therefore a suit is barred.

3. In support of the latter contention, the, learned advocate for the appellant has cited two decisions of this Court, Veyindramuthu Pillai v. Maya Nadar (1919) 38 M.L.J. 32 : I.L.R. Mad. 107 and Jainul-abdin Sahib v. Krishna Chettiar : AIR1921Mad420 .

4. We consider that neither of these contentions can prevail and that the objection of the respondent has to be upheld. Rule 102 of Order 21 does not apply to this case as the decree here is not one for possession of immovable properties. As regards the application of Section 47, it is true that in the cases cited above, this Court held that a stranger purchaser at a Court auction is entitled and bound to have any questions relating to the execution, discharge or satisfaction of the decree under execution decided under Section 47 of the Code of Civil Procedure; but that decision was based on the view that for the application of Section 47 it was sufficient if the question is of a nature in which parties to the suit are adversely interested, though the person actually raising it in any particular case against one party may not be the representative of the other party. It has now been settled by a later Full Bench of this Court in Annamalai v. Ramaswami : AIR1941Mad161 that in order to apply Section 47 the contest must be between the opposing parties in the suit or their representatives. It therefore follows that unless the appellant, a stranger auction-purchaser in this case can be regarded as the representative of the decree-holder, Section 47 cannot apply, as the respondent is obviously the representative only of the judgment-debtor. In the last mentioned case, the sale was in respect of a money decree and it was held there that the auction-purchaser was a representative of the judgment-debtor. But it is contended on behalf of the appellant that the present case is on a different footing from that of a money decree, as here the sale was in execution of a charge decree which is as good as a mortgage decree and that the stranger auction-purchaser in respect of a mortgage decree represents not only the mortgagor but also the mortgagee. No decision of this or any other Court has been cited in support of this contention, but reliance has been placed on the following observation in the judgment in the latest Full Bench case referred to above:

Different considerations may arise when a sale is held in pursuance of a mortgage decree as the mortgagee's interest has there to be considered, but it is not necessary to define the position of an auction purchaser in such a case, as here the Court is merely concerned with the position which arises when there has been a sale of the property attached under a decree for payment of money.

5. We are unable to accept the contention that a distinction can be made between a money decree purchaser and a mortgage decree purchaser. The above cited observation in the judgment of the Full Bench does not amount to a finding that such a distinction does exist. It is only to the effect that it was not necessary to consider that question in that case. On the other hand, in Jainulabdin Sahib v. Krishna Chettiar : AIR1921Mad420 one of the decisions cited on behalf of the appellant himself, it was definitely held that a distinction could not be made on this point between a money decree purchaser and a mortgage decree purchaser. As pointed out in that decision, in the case of a mortgage decree, after the sale is ordered, there is only a right to sell just as there is after attachment under a money decree, and thereafter the purchaser in both the cases ,gets only the interest of the judgment-debtor. We therefore consider that the appellant in this case just like the respondent is a representative of the judgment-debtor and not of the decree-holder. The dispute is thus between the two representatives of the judgment-debtor, in which the decree-holder has no concern. In these circumstances, it is clear that Section 47 cannot apply. Under Rule 103 of Order 21, the order of the lower Court is therefore conclusive and the only remedy of the appellant is by way of suit.

6. The appeal is therefore dismissed with costs.


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