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Swaminatha Vellala thevan and anr. Vs. Darmalinga Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.825
AppellantSwaminatha Vellala thevan and anr.
RespondentDarmalinga Chettiar
Cases ReferredSarat Chunder Dey v. Gopal Chunder Laha
Excerpt:
civil procedure code (act v of 1908,), sections 64, 47 - auction-sale, invalidity of--estoppel, plea of, available to decree-holder, whether enures to auction-purchaser--evidence act (i of 1872), section 115. - - 203. is based is that inasmuch as the party was estopped from denying the validity of the mortgagee's title, the title was good as against the person so estopped, and consequently the mortgagee could give a good title to the purchaser under a mortgage sale. we see no reason why we should not accept this finding which is one of fact, and as a result the appeal must fail......estopped from raising the plea of invalidity, as the plaintiff is not the representative of the decree-holder within the meaning of section 115 of the indian evidence act, and they rely on nadamum narayana iyengar v. veerabhadra pillai 8 ind. cas. 429 as authorities for holding that the auction purchaser is not the representative of the decree-holder. the former case is authority for the proposition only so far as section 244 (now section 47) of the code of civil procedure is concerned, and the latter does not carry the case any further, but in sarat chunder dey v. gopal chunder laha 19 i.a. 203. it was held that when a party was estopped from denying the validity of the mortgage right possessed by a mortgagee, he and his transferees were equally estopped as against the.....
Judgment:

1. In this case the plaint lands were attached in 1900 in execution of a decree against one Sambasiva Aiyar. In 1905 and 1906 the judgment-debtor sold the lands to defendants Nos 1 and 2 by private treaty. In 1908 the lands were sold in execution of the decree and purchased by the plaintiff. Objection was taken to the sale on the ground that the attachment, in pursuance of which the sale was held, was invalid, but this Court decided in Appeal Against Order No. 87 of 1908 that the judgment-debtor could not be allowed to question the proceedings to which his own conduct had led. Defendants now resist plaintiff's claim to the suit lands on the same ground as was taken by their vendor in the execution proceedings, and contend that they are entitled to do so, because Section 64 of the Civil Procedure Code does not apply to a case when the attachment is invalid, and that they are not estopped from raising the plea of invalidity, as the plaintiff is not the representative of the decree-holder within the meaning of Section 115 of the Indian Evidence Act, and they rely on Nadamum Narayana Iyengar v. Veerabhadra Pillai 8 Ind. Cas. 429 as authorities for holding that the auction purchaser is not the representative of the decree-holder. The former case is authority for the proposition only so far as Section 244 (now Section 47) of the Code of Civil Procedure is concerned, and the latter does not carry the case any further, but in Sarat Chunder Dey v. Gopal Chunder Laha 19 I.A. 203. it was held that when a party was estopped from denying the validity of the mortgage right possessed by a mortgagee, he and his transferees were equally estopped as against the auction-purchaser in a sale obtained on the mortgage. Following this decision it was held in Krishnabhupati Devu v. Vikrama Devu 18 M.x 13. that when the plea of estoppel is available to a decree-holder it is likewise available to the purchaser at the execution sale. The reasoning upon which the decision of the Judicial Committee in Sarat Chunder Dey v. Gopal Chunder Laha 19 I.A. 203. is based is that inasmuch as the party was estopped from denying the validity of the mortgagee's title, the title was good as against the person so estopped, and consequently the mortgagee could give a good title to the purchaser under a mortgage sale. Applying this principle to the present case, it would appear that inasmuch as the sale was valid so far a3 the decree-holder was concerned, it is equally valid so far as the auction-purchaser is concerned, for the decree-holder had a legal right to bring the property to sale and that right would enure for the benefit of the purchaser, so far as the judgment-debtor and his representatives are concerned. Defendants are, therefore, estopped from contending that plaintiff's purchase at the auction-sale was invalid. Apart from this question of law the finding of the lower Appellate Court is that the attachment in 1900 was not invalid. We see no reason why we should not accept this finding which is one of fact, and as a result the appeal must fail. The second appeal is dismissed with costs.


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