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Kuppana Kavundan Vs. Kumara Kavundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad450
AppellantKuppana Kavundan
RespondentKumara Kavundan and ors.
Cases ReferredJathavedan Nambudiri v. Kunchu Achan I.L.R.
Excerpt:
civil procedure code, act of 1908,section 47, order xxi, rules 95, 98 - application by purchaser at court sale for delivery of possession a gainst a purchaser of attached property subsequent to attachment maintainable under order xxi, rule 98--resjudicata--erroneous decision in one execution proceeding that no appeal lay not res juidcata in a subsequent proceeding. - .....it is urged for the respondent that the case is concluded by a previous order of the district judge in appeal no. 147 of 1909 on the tile of his court which we have already referred to. there the judge dismissed an appeal of the present first respondent against the subordinate judge's order for delivery and the ground of his dismissal was that the appellant was a person claiming in his own right and not on behalf of the first defendants. this was erroneous and we cannot regard that error as concluding the present appeal. a decision in one proceeding that no appeal lay has not the force of res judicata so as to preclude an appeal in another proceeding. we set aside the order of the district judge except as regards the seventh defendant and remand the case for the disposal according.....
Judgment:

1. The petitioner who was the decree-holder purchased properties in execution of the decree and was obstructed by the respondents He obtained an order for delivery and an appeal against it was dismissed. Being resisted by the respondents when attempting to take delivery he applies under Order XXI, Rule 98, of the Civil Procedure Code, The District Judge has dismissed the application holding that the said rule has no application. As regards the seventh defendant against whom no decree was passed and who was therefore not the judgment-debtor the order is right. But we are unable to uphold it as regards the first defendant and Kumara Goundan who is alleged to have purchased the property subsequent to the attachment and while the save was pending, The purchaser of the attached property is the representative of the judgment-debtor 'within the meaning of Section 47 of the new Code of Civil Procedure corresponding' to Section 244 of the old Code. See Paramananda Das v. Mahabeer Dossji (1897) I.L.R. 20 Mad. 378 Lalji Mal v. Nand Kishore I.L.R. (1897) All. 332 GurPrasad v. Ram Lal I.L.R. (1899) All. 20 and Mathewson v. Gobardhan Tribedi I.L.R. (1901) Cal. 492, Under Rule 95 of Order XXI, the Court is authorized to order delivery to a purchaser against a person 'claiming under a title created by the judgment debtor subsequenty to the attachment of the property. The first respondent is such a person and any question between him and the decree-holder purchaser would fall under Section 47. There is nothing in Rule 98 which militates against this view. That rule has to be read along with Rule 95. No inference can be drawn against the applicability of Section 47 from the omission in Rule 93 of a person claiming title by purchase from the judgment-debtor after attachment. In fact Rule 102 which recognizes the transferee from the judgment-debtor as his representative in execution of decrees for possession of immoveable properties shows that a similar view must be taken of the purchaser of attached property, Rules 95 and 102 between them cover the cases of representatives of the judgment-debtor in oases of transfers after attachment under a money decree and transfers of property whose possession is decreed to the plaintiff. The decision in Jathavedan Nambudiri v. Kunchu Achan I.L.R. (1907) Mad. 72 has no application as the obstruction there was caused by a person who was not the judgment-debtor nor his representative. Assuming that there is any doubt in the matter on the language of Rule 98 itself we should be quite prepared to hold that under Section 146 Judge was bound to deal with the application under Rule 98. The District Judge was therefore wrong in holding that he could not entertain the application It follows that we must also overrule the objection that no appeal lies

2. It is urged for the respondent that the case is concluded by a previous order of the District Judge in Appeal No. 147 of 1909 on the tile of his Court which we have already referred to. There the Judge dismissed an appeal of the present first respondent against the Subordinate Judge's order for delivery and the ground of his dismissal was that the appellant was a person claiming in his own right and not on behalf of the first defendants. This was erroneous and we cannot regard that error as concluding the present appeal. A decision in one proceeding that no appeal lay has not the force of res judicata so as to preclude an appeal in another proceeding. We set aside the order of the District Judge except as regards the seventh defendant and remand the case for the disposal according to law. Costs hitherto incurred will be provided for by the Court below.


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