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K.G. Subramania Iyer Vs. K.V. Krishna Iyer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad571
AppellantK.G. Subramania Iyer
RespondentK.V. Krishna Iyer
Cases ReferredHassan Ammal Bibi v. Ismail Moideen
Excerpt:
- - so far as the madras high court is concerned, it is well settled that proceedings by a decree-holder auction purchaser for delivery of possession relate to execution or discharge or satisfaction of the decree within the meaning of section 47. civil p. 3. till the decree-holder purchaser obtains possession of the property the decree is not considered satisfied, nor execution held to be complete. till he obtains possession it cannot be said that his decree is satisfied to the extent of the value of the property purchased......no. 500 of 1916 on the file of the district munsif's court of palghat against defendant 1, the suit property was purchased in auction on 17th september 1917, by one krishna iyer, who obtained a sale certificate therefor. on 7th january 1918 the said krishna iyer conveyed the property to krishna pattar and subbalakshmammal, who again sold the same to the plaintiff by a sale deed dated 3rd february 1927. neither krishna iyer nor the plaintiff's assignor nor the plaintiff obtained possession through court. the property on the date of sale in court auction, i.e. in 1917, was in the possession of one latchmammal as tenant of defendant 1 on a rent of rs. 2 per mensem. in 1919 the said latchmammal surrendered possession to defendant 1 who leased the property to one kuppiah pattar. in 1923.....
Judgment:

Venkataramana Rao, J.

1. In execution of a small cause decree in S.C.S. No. 500 of 1916 on the file of the District Munsif's Court of Palghat against defendant 1, the suit property was purchased in auction on 17th September 1917, by one Krishna Iyer, who obtained a sale certificate therefor. On 7th January 1918 the said Krishna Iyer conveyed the property to Krishna Pattar and Subbalakshmammal, who again sold the same to the plaintiff by a sale deed dated 3rd February 1927. Neither Krishna Iyer nor the plaintiff's assignor nor the plaintiff obtained possession through Court. The property on the date of sale in Court auction, i.e. in 1917, was in the possession of one Latchmammal as tenant of defendant 1 on a rent of Rs. 2 per mensem. In 1919 the said Latchmammal surrendered possession to defendant 1 who leased the property to one Kuppiah Pattar. In 1923 Kuppiah Pattar assigned his rights to defendant 2 who has been in possession of the property ever since, and in 1927 he finally purchased the property from defendant 1. The plaintiff now seeks to recover possession of the property from defendants 1 and 2. The main question is, is the suit maintainable or barred by Section 47, Civil P. C? So far as the Madras High Court is concerned, it is well settled that proceedings by a decree-holder auction purchaser for delivery of possession relate to execution or discharge or satisfaction of the decree within the meaning of Section 47. Civil P.C. [vide Sandhu Taraganar v. Hussain Sahib (1905) 28 Mad 87]. Section 47, therefore bars a suit by a decree-holder for possession of the property purchased by him in execution of his own decree against the judgment-debtor or any one claiming under him, and the bar is equally applicable to a purchaser from the decree-holder: Vide Sandhu Taraganar v. Hussain Sahib (1905) 28 Mad 87 and Sornam Pillai v. Thiruvazhiperumal Pillai : AIR1926Mad857 . Prima facie the suit is barred both against the defendant 1 and defendant 2 who claim from defendant 1 under a title created subsequent to the decree.

2. But it is contended on behalf of the plaintiffs that at the date of the Court purchase in 1917 Latchmammal was in possession of the property under a subsisting lease from defendant 1 and that he was not bound to apply for possession through Court. True; Latchmammal not being a party to the suit, the decree-holder purchaser can bring a suit to recover possession from her within 12 years from the date of sale. But the suit is not against Latchmammal or anyone claiming under her. Though under Section 65, Civil P.C. the title in the suit property vested in the purchaser Krishna Iyer from the date of sale, there was no transfer of possession to him. The Civil. P.C., provides that if the property is in the possession of the judgment debtor or any one claiming under him the decree-holder purchaser must obtain actual delivery of possession under Order 21, Rule 95, but if it was in the possession of a tenant entitled to be in occupation of the same he must obtain symbolical possession under Order 21, Rule 96. Such symbolical possession operates as actual possession against the judgment-debtor. As observed by a Full Bench of the Calcutta High Court in Juggobundhu Mukerjee v. Ram Chunder Bysack (1880) 5 Cal 584 :

This is the only way in which the decree of the Court awarding possession to the plaintiff, can be enforced, and as, in contemplation of law, both parties must be considered as being present at the time when the delivery is made, we consider that as against the defendant the delivery thus given must be deemed equivalent to actual possession. One very conclusive teat, as it seems to us, that the delivery thus effected under Section 224 does really, in the eye of the law, place the plaintiff in possession as against the defendant, consists in this: that if mesne profits are awarded to the plaintiff, he is only entitled to them up to the time when delivery is given. This can only, of course be explained upon the ground, that, at the time, the defendant's possession is considered at an end, and the transfer to the plaintiff becomes complete.

3. Till the decree-holder purchaser obtains possession of the property the decree is not considered satisfied, nor execution held to be complete. In Kannan v. Avvulla Haji 1927 50 Mad 403 , Devadoss and Sundaram Chetty, JJ., observed:

The mere fact that he purchases the property of the judgment-debtor is not pro tanto satisfaction of his decree. He is allowed to give credit for the value of the property purchased by him, but that alone would not be sufficient to satisfy the decree. Till he obtains possession it cannot be said that his decree is satisfied to the extent of the value of the property purchased. He has to apply to the Court for delivery of possession. The contention that the moment he buys the property of the judgment-debtor he ceases to be the decree-holder and assumes the capacity of a stranger purchaser is not supported by any authority. When the law prescribes a certain course to be pursued by the decree-holder even when he becomes the purchaser of the property it is not open to rely upon the expression used in Article 138, Lim. Act, and to hold that his capacity as decree-holder ceases the moment he becomes the purchaser in Court sale. We hold that the execution is not complete till the decree-holder obtains possession of the property purchased by him in execution of his decree.

4. Of course symbolical possession under Order 21, Rule 96 will not be binding on third parties. But so far as the first defendant was concerned, it was obligatory on the plaintiff or his predecessor in title to have obtained delivery of possession under Order 21, Rule 96 within three years from the date when the sale became absolute and not having done so it is not competent for the plaintiff to maintain this suit. It is argued that surrender of possession by Latchmammal to defendant 1 must be deemed to be a surrender of possession to a stranger and defendant l's possession must be considered to be Latch mammal's possession. This contention is untenable. So long as defendant l's possession was outstanding in that there had been no transfer of possession by virtue of proceedings taken under Order 21, Rule 96 Latch-mammal's surrender was proper in that she surrendered it to the person from whom she got possession and to whom she was in law bound to surrender. The case in Ma Hawa Bi v. Sein Kho 1928 5 Rang 803 is relied on on behalf of the respondents. But that case is distinguishable because there the decree-holder did apply for possession so that by virtue of transfer of possession he became entitled to the rents and profits from the tenant. If in this ease the decree-holder had obtained symbolical possession and then subsequently defendant 1 had taken possession from Latchmammal and leased it to the predecessor in title of defendant 2 there would be a dispossession of the plaintiff and he would have had 12 years to bring a suit against the defendant. The case in Hassan Ammal Bibi v. Ismail Moideen 1916 28 MLJ 642 is distinguishable, being an action against co-sharer, the judgment-debtor being a formal party. As the suit is not maintainable in view of the bar of Section 47, Civil P. 0., it is unnecessary to go into other questions. In result the second appeal is allowed and the plaintiff's suit is dismissed with co9ts. Leave granted.


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