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Ammani Ammal Vs. K.P. Sabapathi Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1948)1MLJ422
AppellantAmmani Ammal
RespondentK.P. Sabapathi Pillai
Cases ReferredMuttaluru Veeraraghavayya v. Venkataraghavaredd Since
Excerpt:
- .....of title asserted by the sixth defendant to house no. 48 was left open. subsequently a final decree was passed against all the defendants including the sixth defendant. in that decree the clause about the reservation of the question of the sixth defendant's title to house no. 48 was not repeated. an execution application was filed by the decree-holder and notices were taken out. the sixth defendant refused the notice and consequently the amin affixed it. the subordinate judge made a note of this on 25th january, 1940, and declared that the defendants were absent. thereafter the terms of the proclamation were settled and on 12th february, 1940, an order was made to proclaim and to sell the hypotheca on 3rd april, 1940. on that date the suit property was purchased in court auction by.....
Judgment:

Yahya Ali, J.

1. This appeal arises out of proceedings in execution. The plaintiff filed a suit on a mortgage to recover the mortgage amount by sale of the hypotheca. The mortgage had been executed by the first defendant for himself and as guardian of his two sons, the second and third defendants. Among the other defendants who were impleaded, the sixth defendant, who is the mortgagor's paternal uncle's son's widow, was impleaded on the ground that she was living in one of the two houses which formed the subject-matter of the mortgage. She in defence set up her own title to that house, namely, house No. 48 claiming that it had fallen to her deceased husband's share in a partition which took place prior to the date of suit. The first issue framed in the suit related to the claim of the sixth defendant. The learned Subordinate Judge who tried the suit considered it unnecessary to decide the question of paramount or hostile title raised by the sixth defendant and leaving that question open he granted a preliminary decree in favour of the plaintiff for the entire suit amount. The preliminary decree directed all the defendants to pay the amount decreed and contained the usual Clause relating to the sale of the hypotheca or the necessary portion thereof in case the decree amount was not paid by the judgment-debtors. In the preliminary decree, however, a specific Clause was inserted to the effect that the question of title asserted by the sixth defendant to house No. 48 was left open. Subsequently a final decree was passed against all the defendants including the sixth defendant. In that decree the Clause about the reservation of the question of the sixth defendant's title to house No. 48 was not repeated. An execution application was filed by the decree-holder and notices were taken out. The sixth defendant refused the notice and consequently the amin affixed it. The Subordinate Judge made a note of this on 25th January, 1940, and declared that the defendants were absent. Thereafter the terms of the proclamation were settled and on 12th February, 1940, an order was made to proclaim and to sell the hypotheca on 3rd April, 1940. On that date the suit property was purchased in Court auction by the decree-holder himself and set off in part satisfaction of the decree amount. The sale was confirmed on 20th June 1940, and part satisfaction entered. Thereafter a sale certificate was granted and when attempt was made to take delivery there was obstruction on the part of the sixth defendant. On an application made by the decree-holder an order was passed that delivery should be made after removing the obstructions and accordingly delivery was effected. Thereupon the sixth defendant filed E.A. No. 1048 of 1940

2. E.A. No. 139 of 1943 in the Court below under Section 47 of the Code of Civil Procedure to set aside the order of delivery and to direct re-delivery of the property to her. That application was dismissed by the District Judge and the present appeal is against that order of dismissal.

3. A number of questions have been raised by Mr. Desikan, the learned advocate for the appellant. He argues that there was no proper service of notice, that in the absence of a declaration by the executing Court that the service was sufficient the sale was not valid and binding, that the question of the sixth defendant's title to house No. 48 having been left open in the suit itself, it was not open to the exe-cuting Court to go into it in an application for execution and sale and that there is no constructive res judicata arising from such service of notice or from such orders as were passed by the executing Court to proclaim and sell the property or selling the property or confirming the sale. Mr. Vaidyanatha Aiyar for the respondent relies upon the decisions in Venkata Rayanim Varu v. China Bapanna : AIR1940Mad213 for the position that a formal order declaring service to be sufficient is not essential when the cir-cumstances of the case indicate that the party concerned knew about the proceeding as it was going on. In that case the learned Judges said that from the circum-stances they saw no difficulty in saying that there was an implied though not an express declaration of sufficiency of service. With regard to the plea of constructive res judicata which he presses he has argued the question from various points of view. He points out that the appellant was not only a party to the suit but a party to both the preliminary decree and the final decree and that she is therefore a judgment-debtor within the definition of that term in Section 2(10) of the Code of Civil Procedure, under which a judgment-debtor is a person against whom a' decree has been passed or an order capable of execution has been made. Even though the question as to her title has been left open in the preliminary decree, the mortgage decree was eo nomine passed against her and the preliminary decree directed that the properties including house No. 48 should be sold in the event of default in the payment of the decree amount. The final decree omitted any reference to the reservation of the question as to paramount title and was passed eo nomine against the sixth defendant also. It was an executable decree and the executing Court was not competent to question the decree-holder's right to proceed against any part of the hypotheca which was held to be liable to be sold for the realisation of the mortgage amount. He also contends that even if there should be deemed to be some variance between the preliminary decree and the final decree on the question of the reservation of paramount title, the final decree which alone is the executable decree should be executed. He relies in particular on Parameshwar Dayal v. Rambrich Singh : AIR1939Pat113 which seems to be on all fours with the present case. The further contention of the learned advocate is that even if notice was not served on the appellant under Order 21, Rule 66 of the Civil Procedure Code she must get the sale set aside, especially in view of the fact that it had been confirmed without any objection haying been taken by her within the prescribed time. Confirmation of sale, he urges, is a binding adjudication between the decree-holder and judgment-debtor that the property could be sold. For this he cites Somasundaram v. Kondqyya : AIR1926Mad12 . Lastly, it is contended by him that a judgment-debtor must in a case of this kind come with an application objecting to the sale within thirty days from the date of the sale, the Article applicable being Article 166 of the Limitation Act. For this purpose he relies on a recent decision of a Full Bench of this Court in Muttaluru Veeraraghavayya v. Venkataraghavaredd Since reported in : (1947)2MLJ468 C.R.P. No. 296 of 1946 given on 5th August, 1947.

4. There seems to be no doubt whatever that the appellant is a judgment-debtorwithin the meaning of Section 2(10) of the Code of Civil Procedure as a final decree capable of execution has been passed against her. It has been held in the unreported Full Bench decision Since reported in : (1947)2MLJ468 cited above that to such a case Article 166 applies and that even if the sale is a nullity and the judgment-debtor has no saleable interest, if the petitioner is a judgment-debtor he must get the sale set aside within thirty days. In the present case I have already mentioned that the sale was held on 3rd April, 1940, while the application to set aside the order of delivery and to re-deliver the property was made on 12th October, 1940. In view of the Full.Bench ruling the application was highly belated and consequently barred by limitation. Upon this finding the appeal falls to be dismissed, and in view of this finding I do not consider it necessary to examine the question of constructive res judicata or any of the other questions raised on either side.

5. The appeal is dismissed with costs.


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