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Mohamed Abdul Kadar Syed Mohammed and anr. Vs. Mohamed ThassIn Mohammed Mustafa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 112 of 1959
Judge
Reported inAIR1962Mad432
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 95, 97, 98, 99 and 103 - Sections 47; Limitation Act, 1908 - Articles 11-A, 167, 180 and 182; Code of Civil Procedure (CPC), 1882 - Sections 244, 318, 328, 334, 384 and 828
AppellantMohamed Abdul Kadar Syed Mohammed and anr.
RespondentMohamed ThassIn Mohammed Mustafa
Cases ReferredAbdul Aziz Sahib v. Chokkan Chettiar
Excerpt:
.....- section 47 and order 21 rules 95, 97, 98, 99 and 103 of code of civil procedure, 1908 - whether auction purchaser can file application for delivery of property purchased by him in court sale repeatedly because of his failure to obtain delivery on each occasion he applies for delivery - auction purchaser entitled to recover possession of property from judgment-debtor but not compelled to seek aid of executing court to obtain possession of property free from obstruction of third parties claiming independent title in themselves unconnected with or dissociated from judgment-debtor - auction purchaser cannot avoid executing court and institute regular suit for possession as against judgment-debtor in view of bar prescribed under section 47. - - (4) the only question that arises for..........the executing court to be restored.(4) the only question that arises for decision is whether the auction purchaser can file applications for delivery of the property purchased by him in court sale repeatedly because of his failure to obtain delivery on each occasion he applies for delivery. order xxi rule 95 of the civil procedure code governs the right of an auction purchaser to obtain delivery of the property purchased in court sale. that section provides that where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequent to the attachment of the property sold, the court shall on the application of the purchaser order delivery to be made by putting such.....
Judgment:

(1) The respondent in this civil miscellaneous second appeal was the second plaintiff in O. S. No. 922 of 1118 M. E. on the file of the District Munsif's Court, Nagarcoil, who obtained a mortgage decree in his favour and who in due course of execution proceedings of that decree purchased the hypotheca. The Court sale was held on 30-1-1955 and the respondent-decree-holder and auction purchaser obtained a sale certificate dated 27-8-1955. In C. M. P. No. 2856 of 1956, he applied for delivery of the properties comprised in the sale sanad and obtained a delivery order on 23-3-1956 in his favour. Men the amin entrusted with the task of delivery attempted to execute the. warrant of delivery he was met with obstruction from the two appellants in this appeal. The respondent therefore filed C. M. P. No. 5456 of 1956 in the District Munsif's Court of Nagarcoil, on 14-5-1956 complaining of the obstruction of the appellants and seeking to removal the obstruction and to obtain delivery of the property purchased by him. The obstruction was On 27-3-1956 but the application for removal of obstruction filed by the respondent was presented in the executing Court only on 14-6-1956 long after the period of 30 days prescribed under the Limitation Act for preferring applications for removal of obstruction. On 5-12-1956, the executing Court passed the following order,

'Heard. This petition is filed after one month after the date of return of the warrant of delivery on account of obstruction. Hence this petition is barred by limitation. This petition is therefore rejected.'

It seems that the respondent really withdrew this application for removal of obstruction finding that it was barred by limitation. The respondent next filed E. A. No. 1659 of 1957 in the executing Court against the judgment-debtor and the obstructionists, the appellants, seeking relief by way of delivery of property comprised in the sale certificate. This application was resisted by the appellants on the ground that it was not maintainable in view of the prior order of the executing Court in C. M. P. NO. 5456 of 1956 dated 5-12-1956 dismissing the respondent's application for removal of obstruction. The learned District Munsif dismissed the application holding that the petition was not maintainable as in effect and in sub-stance it was one for removal of obstruction caused by the appellants, long after the expiry of 30 days from the date of obstruction.

(2) The respondent preferred an appeal, A. S. No. 75 of 1958, on the file of the Subordinate Judge's Court of Nagarcoil, against the order dismissing his petition in E. A. No. 1659 of 1957. It appears that an application was filed before the learned Subordinate Judge praying that E. A. No. 1659 of 1957 may be treated and dealt with as one against the judgment-debtor alone, under Order XXI Rule 95 Civil Procedure Code. The learned Subordinate Judge acceded to this request, and struck out the names of the obstructers, the appellants, from the record. In the opinion of the learned Subordinate Judge, there was no bar on the part of the respondent to file a second application for delivery against the judgment-debtor; 'his application for delivery, E. A. No. 1659 oA,1.957, was therefore remanded to the executing Court for fresh disposal.

(3) This civil miscellaneous second appeal has been preferred by the two obstructionists who want the order of the executing Court to be restored.

(4) The only question that arises for decision is whether the auction purchaser can file applications for delivery of the property purchased by him in Court sale repeatedly because of his failure to obtain delivery on each occasion he applies for delivery. Order XXI Rule 95 of the Civil Procedure Code governs the right of an auction purchaser to obtain delivery of the property purchased in court sale. That section provides that where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequent to the attachment of the property sold, the court shall on the application of the purchaser order delivery to be made by putting such purchaser in possession of the property by removing any person who refuses to vacate the same. When the purchaser meets with any opposition or resistance from persons in possession of the property he has a remedy to move the Court under Order XXI Rule 97 Civil Procedure Code for removal of such resistance or obstruction. The language of this rule is permissive. Order XXI Rules 98 and 99 provide for a summary enquiry in the matter and for an order to he passed as a result of the enquiry. If the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, the Court should direct that the applicant be put into possession of the property. But if the resistance or obstruction was occasioned by any person other than the judgment-debtor or his alias claiming in good faith to be in possession of the property on his own account, the Court should make an order dismissing the application for removal of obstruction. Order XXI Rule 103 Civil Procedure Code provides that any party not being a judgment-debtor against whom an order is made under Rule 98 or Rule 99 may institute a suit to establish the right which he claims to the possession of the property. The rule also provides that subject to the result of any such suit, the order under Rule 98 or Rule 99 shall be conclusive.

(5) The provisions of law referred to above clearly indicate that an auction purchaser is entitled to recover possession of the property purchased from the judgment-debtor but is not completed to seek the aid of the machinery of the executing Court to obtain possession of the property free from obstruction of third parties claiming independent title in themselves unconnected with or dissociated from the judgment-debtor. It is also open to the auction purchaser to court a summary enquiry even in cases where the obstruction is from third parties claiming title on their own account. But if he fails in that attempt to secure possession from them and suffers an adverse order in the executing Court he is obliged to file a suit under Order XXI Rule 103 and that suit has got to be filed within one year from the date of the order under Article 11-A of the Limitation Act. Article 167 of the Limitation Act provides a period of thirty days for filing application by the auction purchaser for delivery free from obstruction.

(6) In the present case, it is true that the respondent met with the obstruction of the appellants while attempting to take delivery of the property as early as 27th March, 1956. His application for removal of obstruction filed on 14-6-1956 was hopelessly barred by limitation, and quite apart from the fact that he withdrew that application, the dismissal of that application placed the respondent in the same position, as if lie had not filed any application at all for removal of obstruction. It cannot be said that the order dated 5-12-1956 in C. M. P. No. 5456 of 1956 is an adverse order against the respondent which need be see aside by a regular suit under order XXI Rule 103 Civil Procedure Code. It is however unnecessary for me to express any final opinion on this question, as it does not arise in this appeal.

(7) Does E. A. No. 1569 of 1957 treating it as an application by an auction purchaser against the judgment-debtor lie, in view of the fact that it is presented 3o days after the obstruction of the appellants or in view of the dismissal of C. M. P. No. 5456, of 1956 on 5-12-1956, is the real question.

(8) A long catena of cases of this Court have held that it is open to the auction purchaser to file any number of applications for delivery of the property and the fact that one application beams infructuous or was dismissed, even he it for the obstruction caused by some, person, is not a bar to the maintainability of another application for the same relief and of the same description. In Muttia v. Appasami, ILR 13 Mad 504 which was a case which arose under the Civil Procedure Code 1882 (Sees. 244, 318 and 334) it was held that the auction purchaser was not bound to complain of resistance or obstruction as the language of section 328 was 'may' and not 'must'. Best, observed thus at page 506.

'There is, therefore, nothing to prevent the decree-holder or purchaser who has been obstructed or resisted in his attempt to get possession of the property decreed or purchased (as the case may be) from making a fresh application for delivery, without making any complaint under Ss. 828,or 384 of the Code.'

In Abdul Karim Sahib v. Thimmaraya Chetty, 24 Ind Cas 512: AIR 1914 Mad 117 (2), a Division Bench consisting of Wallis and Ayling JJ., held as follows:

'The failure of the decree-holder purchaser to take proceedings under Or. XXI, Rule 97 C.P.C. within the time limited by Art. 167 of the Limitation Act does not prevent him from putting in a fresh application far delivery of possession under Order XXI, Rule 95 ILR 13 Mad 504.

(9) In Ammu Kovilamma v. Palakkuzhu Manakkal, 1928 MWN 236 it was held by Beasley J., that every obstruction caused by a person in possession gave rise to a fresh starting point of limitation under Art. 167 of the Limitation Act enabling the auction purchaser to apply for removal of obstruction. The learned Judge observed as follows:

'It is contended that no further application can be made for possession and that, on failure of possession being obtained, the court cannot have a fresh application presented to it for removal of the obstruction. With the argument I entirely disagree. It means that once the amin has been re-fused possession by the person in possession of the property and once the decree-holder has failed within 3o days to present an application with regard to that act of obstruction he is for ever topped from presenting a fresh application in respect of another obstruction. Under the Limitation Act time commences to run from the act of obstruction and in my view it is open to a decree-holder to again apply for an order for possession any every time the amin under the orders of the court goes down and demands, possession and is refused, there is a fresh act of obstruction which entitles the decree-holder to come to the court again and ask for an order for the removal of that obstruction.'

In Narayanaswami Reddi v. Veerappa Chettiar 1949 1 MLJ A1R 1949 Mad 753 Mack J. held that a second application arising our of a subsequent execution Petition by an auction purchaser was maintainable and not barred by any law in view of the dismissal of the earlier application filed under Order XXI, Rule 97 C.P.C.

(10) The Patna High Court held in tile decision in Raghunandan Prasad Misra v. Ramcharan Manda. 4 Pat LJ 94: AIR 1919 Pat 425) as follows:

'Where the application of a decree-holder, or of an auction purchaser, for delivery of possession, is rendered infructuous by reason of obstruction the applicant is entitled to apply for fresh writ Of possession outside the period of limitation prescribed by Art. 167 of the first schedule to the Limitation Act, 1908 without making an application under Order XXI, Rule 97 C.P.C. 1908 within that period. of limitation.'

(11) In a recent decision of the Calcutta High Court in Santa Charan Basu Mallik v. Sm. Parimal Bhattacharjee, 1958 CLJ 314, it was held that an auction purchaser can make, more than one application under Order XXI Rule 97 C. P. C, when the resistance offered on the second occasion is by the same judgment debtor who had offered resistance before and that when the 2nd application is made in respect of an obstruction which was put up thirty days after the date of the first obstruction, Art. 167 of the Limitation Act does not operate as a bar.

(12) Mulla in his Civil Procedure Code 12th. Edn. at page 926 summarizes the legal position in the following words:

'Under the present Code a holder of a decree for possession of immovable property applies for possession under Order 21, Rub 35, while an auction purchaser applies for possession under Order 21, Rule 95. The present role dealt with obstruction or resistance in obtaining possession. An important question that arises in this connection is whether, if a decree-holder or auction purchaser who is obstructed or resisted in obtaining possession, omits to apply under this rule within 30 days from the date of obstruction or resistance, the only other remedy open to him is to proceed by a regular suit or whether he is entitled to a fresh writ of possession. It has been field by the High Courts or Madras and Patna that he is entitled to make a fresh application for delivery of possession 2nd to a fresh warrant for possession. On the other hand, it has been held by the High Court of Allahabad (see Kesri v. Abdul Hasan, ILR 26 All 365), that he is not so entitled and that his only remedy is by a regular suit. The Bombay High Court holds that he is entailed to a fresh warrant for delivery of possession, but that, if the resistance is shown to he by the same person and in the same character the application will be barred by Art. 167 Of the Limitation Act (vide Mukund v. Tanu, : AIR1933Bom457 ).'

(13) It may be noted that the Bombay High Court has followed the previous Full Bench decision in a recent decision in Madan Mohan v. Hari Anandilal, : AIR1959Bom269 .

(14) Mr. P. S. Ramchandran, learned counsel for the appellants, relied upon certain observations in a decision of a Full Bench of this court in Abdul Aziz Sahib v. Chokkan Chettiar, ILR 58 Mad 893. AIR 1935 Mad 803, and contended that the appellants having successfully obstructed and resisted delivery of possession and the application by the respondent for removal of such obstruction having failed, the execution of the decree in regard to the property in the possession of the obstructionist, has become complete, that the powers of the executing court have been exhausted and that the remedy, if any, to the respondent is only by way of a regular suit. In the Full Bench case, in a court sale, the decree-holder purchased certain items of properties belonging to the judgment debtors. He applied for delivery of possession of the properties purchased, which comprised a house and certain lands. When the Amin proceeded to deliver possession of the house, one Abdul Ghaffar Sahib claimed that his wife Amina Bi, had a share in the house and obstructed delivery. The Amin could not therefore effect delivery and returned the warrant. The executing court thereupon dismissed the execution petition completely on 26-9-1930.

The decree-holder purchaser filed a petition on 18-10-1930 under Order XXI, Rule 97 C. P C. complaining of the resistance and seeking to obtain delivery free from obstruction. But the obstructer objected to the petition on the ground that it was filed more than thirty days after the date of the obstruction. The petition was therefore dismissed. The decree-holder purchaser then filed the petition out of which the appeal to this court arose against the judgment-debtor for delivery of session. The actual question raised in that case was whether the execution application was barred by limitation or not; if the application governed by Art. 180 it was barred by limitation, but if it was governed by Art. 182 clause 5 of the Act, it was not so barred. The Full Bench took the view that it was governed by Art. 180, but held that the second application for delivery was in fact, a continuation of the previous execution petition, which, though it was dismissed, was not judicially disposed of. In the course of the opinion of the Full Bench which was delivered by Ramesam J. there are a few observations indicating how execution proceedings have got to be conducted and disposed of, especially when the auction purchaser applies for delivery of possession of the properties purchased. At age 905 the learned Judge observed as follows:

'So far as the obstructer's share is concerned, the execution is complete and the decree-holder has no remedy in execution. His only remedy is by a regular suit.'

I do not understand the observation quoted above of the Judge as meaning that the auction purchaser should resort to a regular suit eo instanti there is any obstruction on the part of a third party claiming to be in possession on his own account Such a view is plainly in contravention of the provisions of Order XXI Rules 97, 98 and 99 C.P.C. The auction purchaser can initiate proceedings for removal of obstruction and unless and until an enquiry is held it cannot he known whether the person causing the obstruction is doing so in his own right or at the instigation of the judgment debtor or as a son claiming title through him after the attachment of the property. The auction purchaser may at his option avoid the process of a summary enquiry in an executing court, where he feels that the obstruction is by a person claiming title in himself. The auction purchaser cannot avoid the executing court and institute a regular suit for possession as against the judgment-debtor in view of the bar prescribed under S. 47 of the C.P.C.

It is very clear that Ramesam J. used the expression that execution was complete only to make it clear that in a regular suit which the auction purchaser may institute for recovery of possession be should not be met with the plea of bar under S. 47 C.P.C. At page 906 the learned Judge observes as follows:

'But in such a case the third party may object and on account of the third party's objections physical possession of the property cannot be given. In such a case it the duty of the court to note the fact and to order delivery of such possession as the matter may then be capable of, so far as the judgment debtor is concerned. It is always better that this formal procedure is observed; otherwise in a regular suit which the purchaser has to bring against the obstructer, the suit being necessitated by his obstruction only, the judgment-debtor may have to be made a formal party and then objection may be raised that so far as he is concerned a regular suit does not lie, execution not being complete.

(15) I am unable to hold that there is anything in the decision of the Full Bench in ILR 58 Mad 893: AIR 1935 Mad 803 to disentitle the respondent from filing an application for delivery of the property purchased by him in the circumstances set forth above.

(16) The appellants have been struck off frost the array of parties by the lower appellate court. They cannot insist that they should be kept on record as it is always open to the auction purchaser to confine his application for delivery as against the judgment debtor alone. The appellants can in no way feel aggrieved by what has been done by the lower appellate court. In the result, this appeal fails and is dismissed with costs. No leave.

(17) Appeal dismissed.


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