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Mandavilli Rama Row, Legal Representative of Counter Vs. Sivanarayana and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in49Ind.Cas.629
AppellantMandavilli Rama Row, Legal Representative of Counter
RespondentSivanarayana and ors.
Cases Referred and Hassan Ammal Bibi v. Ismail Moidgen Rowthar
Excerpt:
civil procedure code (act v of 1908), sections 47, 115, 161 - execution of decrees--auction-purchasers under different decrees, disputes between--purchaser of fractional share, application by, to restrain purchaser of whole property from taking possession, maintainability of--remedy, proper--appeal against order granting petition, whether lies--revision. - - such an application clearly does not lie under section 47, as the petitioners and counter-petitioners are cot parties to the same suit or representatives of such parties......were auction-purchaser of an undefined one-third share in items nos. 2 to 5 in question here. the counter-petitioners purchased the whole of these properties. petitioners asked that the counter-petitioners should be restrained from taking possession of the whole of the properties and should be allowed to take joint possession of only a two-third share on the ground that one-third had already been sold to them. the application was made under sections 47 and 151 of the code of civil procedure. such an application clearly does not lie under section 47, as the petitioners and counter-petitioners are cot parties to the same suit or representatives of such parties. they are auction-purchasers in court auction under two different decrees.2. we do not think sections 151 applies either. it is.....
Judgment:

1. Petitioners in the lower Court were auction-purchaser of an undefined one-third share in items Nos. 2 to 5 in question here. The counter-petitioners purchased the whole of these properties. Petitioners asked that the counter-petitioners should be restrained from taking possession of the whole of the properties and should be allowed to take joint possession of only a two-third share on the ground that one-third had already been sold to them. The application was made under Sections 47 and 151 of the Code of Civil Procedure. Such an application clearly does not lie under Section 47, as the petitioners and counter-petitioners are cot parties to the same suit or representatives of such parties. They are auction-purchasers in Court auction under two different decrees.

2. We do not think Sections 151 applies either. It is not shown that the Court had any inherent power in this matter.

3. Petitioners' remedy was to bring a suit for partition and delivery of their one-third share. See Yelumalai Chetty v. Srinivasa Chetty 29 M. 294 and Hassan Ammal Bibi v. Ismail Moidgen Rowthar 29 Ind. Cas. 976 : 28 M.L.J. 612 : (1915) M.W.N. 414. There is no allegation that petitioners have already obtained joint possession of their share. If they had, they can remain in possession till an attempt is made to remove them. There is no legal provision under which the lower Court's order could be justified at this stage.

4. On our view that Section 47 of the Code of Civil Procedure does not apply, no appeal lies to this Court, but we have decided to treat the appeal petition as one for revision under Section 115, as we think this is a fit case for interference under that section. The order of the lower Court must be set aside and the petition dismissed with costs in the' lower Court. Each party will bear his own costs here.


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