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N. Sethuramaswami Nayani Varu Vs. Sowear Syed Mir HussaIn Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1919)36MLJ298
AppellantN. Sethuramaswami Nayani Varu
RespondentSowear Syed Mir HussaIn Sahib and anr.
Cases ReferredIf Karalia Nanubhai v. Mansukhram I.L.R.
Excerpt:
- - we fail to understand this. it is a well-recognised rule of law that the rights of the parties should be considered as on the date of suit or application and not with reference to what transpired subsequently. 400 is inconsistent with this view, we are respectfully unable to accept it as good law......were sold in court-auction on the 16th of april 1917. on the 22nd of june 1917 the judgment-debtor' executed a sale-deed to a third party. on the 25th. of june, he applied to the court to set aside the sale and deposited the requisite amount. the conveyance of the 22nd of june was not registered. a fresh sale-deed was executed to the same third party on the 20th of august 1917, the subordinate judge disposed of the application on the 11th of january 1918. he held that as the conveyance of the 22nd of julie was capable of being registered and as when registered, it would confer title as on the date of the sale, the judgment-debtor had no locus standi on the 25th of june to present the application. he has relied upon subbarayadu v. lakshminarasamma i.l.r. (1913) m. 775 and lshar das.....
Judgment:

1. This is an appeal against the order of the Subordinate Judge of Chittoor rejecting an application by the judgment-debtor under C). XXI, Rule 89 of the Code of Civil Procedure (Act V of 1908). The facts are these : The properties of the judgment-debtor were sold in court-auction on the 16th of April 1917. On the 22nd of June 1917 the judgment-debtor' executed a sale-deed to a third party. On the 25th. of June, he applied to the Court to set aside the sale and deposited the requisite amount. The conveyance of the 22nd of June was not registered. A fresh sale-deed was executed to the same third party on the 20th of August 1917, The Subordinate Judge disposed of the application on the 11th of January 1918. He held that as the conveyance of the 22nd of Julie was capable of being registered and as when registered, it would confer title as on the date of the sale, the judgment-debtor had no locus standi on the 25th of June to present the application. He has relied upon Subbarayadu v. Lakshminarasamma I.L.R. (1913) M. 775 and lshar Das v. Asaf Ali Kan I.L.R. (1911) A. 186. In those cases there was a completed registered conveyance and it was held that by virtue of those conveyances the judgment-debtor was divested of his right to present an application under Order XXI, Rule 89 of the Code of Civil Procedure (Act V of 1908). Other High Courts have taken a different view. They have held that the judgment-debtor would always have the right of getting the sale set aside and that the execution of a conveyance to a third party would not interfere with his right. It is not necessary in the view we are taking of the case, to express any opinion on this vexed question. In our opinion the judgment-debtor was a person 'owning the property' on the date of his application. The fact that the sale could have been perfected and was capable of passing a complete title should not affect his locus standi. It was held in this Court by a Full Bench in Kurd Veerareddi v. Kurri Bapi Reddi I.L.R. (1901) M 306 that notwithstanding the execution of an unregistered conveyance and the passing of possession thereunder, the vendor of the property was entitled to sue for possession against the vendee. That view has been confirmed in Ramanathan v. Ranganathan I.L.R. (1017) M. 1134. Consequcntly the mere execution of a conveyance does not deprive the owner of his rights in the property until registration. The rule of law which dates back the title when registered, to the date of the conveyance does not affect this principle. The right is in the vendor, although it can be divested by the registration of the conveyance.

2. The decisions to which the learned Vakil for the respondent drew our attention, namely Savitri Ammal v. Ramaswami : (1898)8MLJ266 and Venkata Reddi v. Yellappa Chetty (1916) 5 L.W. 234 do not affect the present case. The Subordinate Judge ways that the conduct of the Judgment-debtor and of his vendee was fraudulent. We fail to understand this. On the facts the utmost that can be said is that the vendor and the vendee realising that if the document of the 22nd of June was registered it might affect the application of the judgment-debtor, agreed not to get it registered and made up their mind that a new sale deed should be executed. There is nothing illegal or wrong in such a procedure. The judgment-debtor had the right under Order XXI, Rule 89 to enforce his rights. His vendee who was anxious to get a valid sale, agreed, in his own interest, not to press for the registration of the earlier document. Such an attitude is quite reasonable and has no element of fraud in it. We are therefore of opinion that the judgment-debtor has a right to make the application on the date he made it. It was next argued, relying mainly upon Karalia Nanubhai v. Mansukhram I.L.R. (1900) B. 400 that as a new sale-deed was executed before the final order was passed, the judgment-debtor had lost his right. We are unable to accept this contention. The new conveyance was executed pendente lite and the vendee would be affected by all the equities enforceable against his vender. It is a well-recognised rule of law that the rights of the parties should be considered as on the date of suit or application and not with reference to what transpired subsequently. It is true that courts have power under certain circumstances to grant relief to the plaintiff with reference to what has happened since the institution of the suit or application. But that is an indulgence which the court may or may not grant. The ordinary right of the party is that his claim should be adjudicated with reference to the matters that existed on the date of his suit or application. If Karalia Nanubhai v. Mansukhram I.L.R. (1900) B. 400 is inconsistent with this view, we are respectfully unable to accept it as good law. We must therefore reverse the order of the Subordinate Judge and set aside the court sale made on the 16th April 1917. Appellant is entitled to his costs here and in the court below against the 2nd respondent.


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