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Kathirayasami Naicker Vs. Dewan Bahadur V. Ramabadra Naidu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad180; 45Ind.Cas.608
AppellantKathirayasami Naicker
RespondentDewan Bahadur V. Ramabadra Naidu and ors.
Cases ReferredIn Chidambaram Chetty v. Karuppan Chetty
Excerpt:
.....not included in sale--certificate, delivery of, to purchaser--suit by mortgagor for re-delivery, maintainability of--suit, whether can be converted into application under section 47. - - the series of sections relating to obstruction by judgnient-debtors, to possession being given to a decree-holder or to a purchaser in execution of a decree all assume that the' judgment-debtor is to come in by way of an application in execution-proceedings if he was not satisfied with either the delivery of possession or with the order directing the sale. --we think it better to have a report after enquiry by the lower court on the point in dispute between the parties raised in civil miscellaneous petition no......with their hamlets. in the said two villages there are ayan punja garden lands of about 9462 kulis (a kulis is about 5/7th of an acre) besides waste land, hills and forests which the mortgagor, owned as zemindar. besides these, there were pannai (home-far) lands in which the zemindar was entitled to both the warams. the total extent of such pannai lands in the zamindari is in dispute and it is difficult to ascertain it from the evidence on the record.2. the question in dispute in appeal is about the extent of pannai lands purchased by the 1st defendant in the court sale. according to the plaintiff, an extent of 226 kulis, which at the time of the mortgage to sabapathi chetti was admittedly in the possession of one kamulammal, the widow of the predecessor of kadiriyasami, was not.....
Judgment:

Srinivasa Aiyangar, J.

1. The plaintiff's father Kadiriyasami on the 15th September 1893 mortgaged to Sabapathi Chetty, the 2nd defendant, what may generally be termed the Zasmindari Estate of Doddappa' naikannr. The mortgagee sued to enforce' his security in Original Suit No. 3 of' 1901 on the file of the District Court of Madura and obtained a decree for sale on October 1st, 1901. He transferred the decree on May 38th, 1906, to Mr. Ramabhadra Naidn, the 1st defendant, who executed the decree brought what presumably were the mortgaged properties to sale and purchased them himself after obtaining the necessary sanction from Court. Kadiriyasami Naicker, the mortgagor judgment-debtor, however, died before the final execution and sale. The 1st defendant after his purchase obtained a sale-certificate from Court and got possession of the properties which, it was assumed he purchased. The Zamindari of Doddappanaikanoor consists of the 2 villages of Doddappanaikanoor and Sempatty together with their hamlets. In the said two villages there are ayan punja garden lands of about 9462 kulis (a kulis is about 5/7th of an acre) besides waste land, hills and forests which the mortgagor, owned as Zemindar. Besides these, there were pannai (home-far) lands in which the Zemindar was entitled to both the warams. The total extent of such pannai lands in the Zamindari is in dispute and it is difficult to ascertain it from the evidence on the record.

2. The question in dispute in appeal is about the extent of pannai lands purchased by the 1st defendant in the Court sale. According to the plaintiff, an extent of 226 kulis, which at the time of the mortgage to Sabapathi Chetti was admittedly in the possession of one Kamulammal, the widow of the predecessor of Kadiriyasami, was not included in the mortgage or the suit or the decree or the execution-sale and did not pass to the 1st defendant as purchaser; while according to the 1st defendant, the said lands and in fact all the pannai lands within the geographical limits of the Zemindari, whether in the possession of Kadiriyasami, the Zemindar, or not, were included in the mortgage and were thereafter included in the suit and the decree and were sold.

3. [His Lordship next discussed the evidence and concluded:]

4. I, therefore, come to the conclusion that the sale did not include the 226 kulis, though it is true that the 1st defendant and the mother of the plaintiff were under the mistaken impression that they were so included.

5. It remains now to deal with another contention of the 1st respondent, Though the sale-certificate did not include the 226 kulis, it appears to be true that the lands on which there were encumbrances were placed in the possession of the 1st defendent ant under Section 319 of the old Code of Civil Procedure, by an order of Court--see Exhibit III (a) at page 83 of the printed papers. Among the properties so delivered 'are 63 and odd kulis out of the 226 kulis subject to encumbrances created, by Bommuthayi after the date of the mortr gaged decree for the purpose of raising money to pay the mortgagee decree-holder as stated above. The 1st respondent's con-tention is, whether the sale certificate included these lands or not, inasmuch as by an order of Court the 1st defendant was placed in possession (though such possession was symbolical) of a portion of these lands in the purported execution of the sale-certificate, the only Court which can determine whether the lands so delivered were included in the sale-certificate or not, was the Court which was executing the previous decree; and that can be done only on ab application to that Court and not by a separate suit. I think we must give effect to this contention. It has been held in several cases in this Court that quesions arising between the decree-holder purchaser and the judgment-debtor as regards the properties directed to be sold by the decree and purchased in execution sale are questions relating to the execution of the decree and must be determined under Section 47 of the Code. The latest of such cases, is Gunniah Vencatachalapathy Aiyar v. Perumal Iyer 13 Ind. Cas, 133. Mr. K.V. Krishnasamy Aiyar for the appellant contends that there is no case in which the question as to what passed under the sale, apart from the question of tha validity of that sale, was held to be a matter relating to execution under Section 47. That maybe so, but I see no reason to think that questions such as we have here are not questions relating to execution. The series of sections relating to obstruction by judgnient-debtors, to possession being given to a decree-holder or to a purchaser in execution of a decree all assume that the' judgment-debtor is to come in by way of an application in execution-proceedings if he was not satisfied with either the delivery of possession or with the order directing the sale. The order directing delivery of possession to a purchaser under Section 319 of the old Code, which corresponds to Order XXI, Rule 96, of the present Code, is a judicial order--see Pran Krishna Dhar v. Juramoni Chowkidar 13 C.W.N. 694. (3), 8 Ind. Cas. 543: (1910) M.W.N. 711. The appellant asked that his present suit should be converted into an application under Section 47 of the Code. But it is to be observed that any application on the date, when the present suit was instituted, to rectify any error in the proceedings in execution of the mortgage decree would be barred by limitation, as more than three years had elapsed since the date of the order of the delivery of possession, and the Limitation Act of 1908 does not extend the time for making the application on the ground of minority, though under the Limitation Act of 1877 such a disability would be taken into account in computing the period of limitation. In Chidambaram Chetty v. Karuppan Chetty 13 Ind. Cas 133 this Court desided that the new Limitation Act applied to applications of this sort and that a person, who by reason of minority would have an extended period of limitation under the old Act for making an application, cannot after the new Act came into force claim the benefit of the exemption under the old Act.

6. Following that decision I hold that the plaintiff is not entitled now to ask us to convert his suit into an application.

7. A technical objection was taken to the frame of the suit by the 1st respondent. It was said that the plaintiff did not ask for possession of these 226 kulis of land but asked only for an injunction, and inasmuch as he was not in possession at the date of the suit, his suit should be dismissed as he has not prayed for the proper relief. No such objection was taken in the lower Court and we are not inclined to uphold his contention. If necessary, the plaintiff should be given permission to amend the prayer in the plaint and we think he is in the circumstances of the case entitled to a decree for possession of the lands not covered by the sale to the 1st defendant, except the 68.6.3 kulis which the plaintiff is not entitled to recover by a separate suit. The lands so excepted are those described in Schedule D of the plaint. The plaintiff will also be entitled to mesne profits on the lands now decreed to him. That will be the decree in the appeal. The plaintiff and the 1st defendant will pay and receive proportionate costs both here and in the Court below.

8. I ought to draw attention to the fact that the translation of the portion of Exhibit II (f) which contains the description of the properties mortgaged, which is the most important portion for the purpose of this appeal, is incorrect.

9. Abdur Rahim, J.--I agree.

10. The appeal having been posted to be spoken to on 4th April 1917 and the Miscellaneous Petition coming on for hearing on the same day before Mr. Justice Abdur Rahim and Mr. Justice Srinivasa Aiyangar, the Court made the following.

11. Order.--We think it better to have a report after enquiry by the lower Court on the point in dispute between the parties raised in Civil Miscellaneous Petition No. 1008 of 1917, namely, whether 'No. 2802' in Schedule C of the plaint is a mistake for 'No. 2801' and whether what is claimed in Schedule E is really 'No. 2801.' Time for the submission of the report will be till the re-opening of this Court after the ensuing summer recess.

12. In compliance with the above order, the Temporary Subordinate Judge of Ramnad at Madura submitted the following.

13. Report.--I have been directed by the High Court to report whether No. 2802 in Schedule C of the plaint is a mistake for No. 2801 and whether what is claimed in Schedule E is really No. 2801.

14. On the above evidence, therefore, 1 have no hesitation in saying that the painash No. 2802 in plaint Schedule C is a clear mistake for paimash No. 2801.

15. The land claimed in Schedule E is waterspread or the tank-bed and the extent given is 20 kulis. Defence 1st witness, the Karnam, says that the piamash No. of the tank-bed is 2802 and its extent is 20 kulis. So, his evidence places the matter beyond all doubt, and, therefore, what is claimed in Schedule E is really not paimash No. 2801 but paimash No. 2802. I find the point accordingly.

16. The Appeal and Civil Miscellaneous Petition coming on for hearing after the return of the report of, the Temporary Subordinate Judge of Ramnad at Madura, in compliance with the order of Court dated the 4th April 1917, the Court delivered the following.

17. Judgment.--We accept the finding and the plaint will be amended in accordance with it and the decree will follow.

18. The appellant will bear the costs of the 1st respondent in this petition.


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