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Sivakami Ammal Vs. C. Ganapathia Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)1MLJ390
AppellantSivakami Ammal
RespondentC. Ganapathia Pillai and anr.
Cases ReferredNawal Kishore v. The Municipal Board
Excerpt:
.....decree which they had obtained in o. 146 of 1937 and the charge they had on the property for the arrears of property tax for the years 1934 to 1937. the fact of this omission is of course not disputed, but the learned advocate for the appellant contends that on account of the failure to notify the existence of the subsisting charge for subsequent years the municipality is estopped as against the auction-purchaser, i. it is too well established to admit of any doubt that the municipality gets the benefit of successive charges in respect of arrears of rent for successive periods. 662 of 1939 as well as to have brought on record the plaintiff in e. not having done either i am clearly of opinion that no act of theirs in the subsequent execution proceedings could adversely affect the title..........was brought to sale only on 21st october, 1940 and the plaintiff became the purchaser at the court sale. a sale certificate was issued to her on 28th november, 1940. meanwhile the municipality had brought another suit against the 2nd defendant for arrears of property tax for the years 1934 to 1937 and obtained a decree in august 1937. in spite of having obtained this decree in 1937 the municipality did not mention the existence of the decree or the charge for the arrears of the years covered by the decree either in the sale proclamation or in execution proceedings in o.s. no. 396 of 1934. though the plaintiff became the purchaser on 21st october, 1940, she did not succeed in obtaining delivery of the property which was first obstructed by her husband's brother and brother's son and.....
Judgment:

Rajamannar, J.

1. The plaintiff is the appellant. The suit was to set aside the order passed by the District Munsiff, Madura Town, In E.A. No. 887 of 1943, which was an application filed by the plaintiff under Order 21, Rule 97 of the Code of Civil Procedure. The facts are not in dispute but it is necessary to state them to appreciate the contention of the parties in this appeal. The subject-matter of the suit is a house in Madura Town which was owned by the 2nd defendant who is the husband of the plaintiff. The Madura Municipality sued the 2nd defendant in O.S. No. 396 of 1934 on the file of the District Munsiff's Court of Madura Town and obtained a decree. That suit was to enforce the statutory charge in respect of the arrears of property tax for the years 1931 to 1933. Though the decree was obtained in 1934 the house was brought to sale only on 21st October, 1940 and the plaintiff became the purchaser at the Court sale. A sale certificate was issued to her on 28th November, 1940. Meanwhile the Municipality had brought another suit against the 2nd defendant for arrears of property tax for the years 1934 to 1937 and obtained a decree in August 1937. In spite of having obtained this decree in 1937 the Municipality did not mention the existence of the decree or the charge for the arrears of the years covered by the decree either in the sale proclamation or in execution proceedings in O.S. No. 396 of 1934. Though the plaintiff became the purchaser on 21st October, 1940, she did not succeed in obtaining delivery of the property which was first obstructed by her husband's brother and brother's son and though she obtained an order for removal of obstruction by them there was again difficulty in obtaining possession. On 15th December, 1941, the 1st defendant who is the contesting respondent here became the purchaser of the same property in execution of the decree in O.S. No. 146 of 1937. Though by the date of the execution proceedings the plaintiff had become the purchaser of the property the Municipality as a decree-holder did not choose to bring on record the plaintiff in the execution proceedings. The sale in favour of the first defendant was therefore in proceedings of which the plaintiff had no notice. When the plaintiff eventually filed E.A. No. 887 of 1943 under Order 21, Rule 97 of the Code of Civil Procedure, there was obstruction by the first defendant claiming under his purchase in execution of the decree in O.S. No. 146 of 1937. The plaintiff's application was dismissed. Hence she was obliged to file the suit out of which the present second appeal arises, to set aside that order and obtain a declaration of title to the property. The learned District Munsiff of Madura decreed the suit. It is not necessary to give the reasons for his decision. On appeal by the 1st defendant the learned Subordinate Judge of Madura reversed the decision of the learned District Munsiff and dismissed the suit. The plaintiff has therefore filed the second appeal. Though there are several grounds raised by the appellant in her Memorandum of Appeal, I have heard her learned Counsel only on one point, as in my opinion, the appeal can be disposed of on that point.

2. It is contended for the appellant that when the suit property was proclaimed for sale in execution of the decree in O.S. No. 396 of 1934 in E.P. No. 662 of 1939 the Municipality who was the decree-holder in that suit failed to notify the decree which they had obtained in O.S. No. 146 of 1937 and the charge they had on the property for the arrears of property tax for the years 1934 to 1937. The fact of this omission is of course not disputed, but the learned advocate for the appellant contends that on account of the failure to notify the existence of the subsisting charge for subsequent years the Municipality is estopped as against the auction-purchaser, i.e., the plaintiff, from asserting any claim to bring the property to sale in enforcement of the charge for the subsequent years. He relied upon two rulings reported in I.L.R. 15 Mad., in the first of which Jagannatha v. Gangi Reddi I.L.R. (1892) Mad. 303 the plaintiff attached the property and brought it to sale in execution of a decree against the 1st defendant and the other defendants purchased at the Court sale, the property. The plaintiff had at the time a mortgage over the same property. But notice of his mortgage was not given in the execution proceedings. When the plaintiff sued to realise his security under the mortgage by sale of the premises which were in the possession of the auction-purchasers, it was held by the learned judges that the plaintiff was estopped from setting up his claim because he had allowed the auction-purchasers to buy without notice of the mortgage in his favour. The other decision in Kasturi v. Venkatachalapathi I.L.R. (1892) Mad. 412 lays down a similar proposition. The learned Judges there say as follows:

The ground of decision is that it was plaintiff who led intending purchasers to believe that the property was offered for sale free of encumbrances, and that plaintiff by concealing the existence of a lien, of which he was aware, led the purchaser to pay full value for the property.

The same rule of estoppel, as was enunciated in these two rulings was applied in Giriya Sheiti v. Anathamma Shettithi (1926) 52 M.L.J. 222, a case where a lessor sought to proceed against the property which he had brought to sale in execution of a decree obtained by him for arrears of rent for a particular year for the arrears due thereon for the next year which had fallen due by the time of the sale in execution of the first suit and which remained unpaid. Curgenven, J., held that the existence of the arrears of rent for the subsequent year not having been disclosed in the sale proclamation the purchaser at the Court sale was not liable to pay that amount. The decision in Kasturi v. Venkatachalapathi I.L.R. (1892) Mad. 412 was followed.

3. In the lower Courts reliance appears to have been placed on a decision of the Full Bench of the Allahabad High Court reported in Nawal Kishore v. The Municipal Board, Agra I.L.R. (1943) All. 453. But they appear to have overlooked the important distinction between the facts of the case before the Allahabad High Court and the present case.' In the Allahabad case in execution of a decree which one ' N ' obtained against' S ' certain premises owned by ' S ' were brought to sale and sold by public auction and we.re purchased by the decree-holder himself. At the time the sale took place the house tax and water rate were in arrears but the purchaser was not aware. It was held that the municipal tax would not cease to be a first charge on the property merely because they were not notified in the sale proclamation. That was a case where the municipality was held not tohave lost its statutory first charge because of an omission by a third party decree-holder to mention the subsistence of the charge in favour of the municipality in execution proceedings taken by him. But in the present case it is the Municipal Council which brought to sale the property in execution in the first instance in O.S. No. 396 of 1934 and it was the same Municipality which again brought the property to sale in execution of the subsequent decree obtained by it. In the Allahabad' case there could not be any question of estoppel because it was not the Municipality that was guilty of any omission. The Municipality was not a party to the decree in which the plaintiff became a purchaser.

4. Learned advocate for the contesting respondents, i.e., the first defendant, in my opinion, did not meet this argument but put forward a contention that the successive charges in favour of the Municipality can be enforced by successive sales. Learned advocate for the appellant never contested this, nor was it necessary for him to so contest. It is too well established to admit of any doubt that the Municipality gets the benefit of successive charges in respect of arrears of rent for successive periods. Undoubtedly the same property can be brought to sale any number of times for the arrears for different periods. It is also true that in each case the arrears are the first charge subject to government revenue. But all this is beside the point. The real question in this case has nothing to do with the rights of the Municipality as a Municipality. The question is whether a party, who obtains a decree against a property and brings it to sale when on the same property there is a subsisting charge, is bound to notify the existence of that charge for the benefit of the intending purchasers. The law is the same for municipalities as for private persons. A municipality does not cease to be a decree-holder because it is a Municipality.

5. It is because this point was overlooked that the learned advocate for the respondent urged another contention justifying the action of the Municipality in not bringing on record in the second suit the plaintiff who had become, to their knowledge, the purchaser in execution of the decree in O.S. No. 396 of 1934. The learned advocate contended that under Section 88 of the District Municipalities Act it was the duty of the transferee to have given notice to the Municipality of the transfer, and if he had not done so the Municipality was not bound to bring him on record in subsequent proceedings. But unfortunately this is mixing up two things, viz., the rights and powers of a Municipality as a statutory body having specific powers conferred by the statute and the Municipality as a decree-holder. The effect of not giving a notice under Section 88(1) is stated in the other sub-section of that section itself which has no bearing on the question in issue in this case but has only a bearing on the liability for payment of subsequent taxes. The municipality, in my opinion, was bound both to have notified the existence of the charge and the decree for arrears for subsequent years in the execution proceedings in O.S. No. 396 of 1934, i.e., in E.P. No. 662 of 1939 as well as to have brought on record the plaintiff in E.P. No. 900 of 1941 in the second suit by which date to its knowledge the plaintiff had become the purchaser of the property which they were bringing to sale. Not having done either I am clearly of opinion that no act of theirs in the subsequent execution proceedings could adversely affect the title obtained by the plaintiff by virtue of her purchase in E.P. No. 662 of 1939. It was suggested that though there may be an estoppel as against the Municipality there could be no estoppel against the auction-purchaser but no authority has been cited for this position and I do not agree with this contention.

6. The decree of the lower appellate Court is set aside and the decree of the learned District Munsiff of Madura Town is restored with costs throughout.

7. Leave refused.


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