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Ramaswami Chettiar Vs. Meyyappan Servai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1937Mad779; 172Ind.Cas.468
AppellantRamaswami Chettiar
RespondentMeyyappan Servai
Cases ReferredGiridhari Lal v. Sital Prasad
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 93 - stranger--auction-purchaser applying under order xxi, rule 93, for refund of purchase money on setting aside of sale--order on such an application--appeal and second appeal, maintainability of--limitation for such application--article applicable--limitation act (ix of 1908), schedule i, articles 181, 182. - .....decree-holder preferred a revision petition to this court (c.r.p. no. 308 of 1933) and at the same time appealed to the district judge. the district judge transferred the appeal to the subordinate judge, who held that the application was barred and dismissed the application. against that finding this appeal (c. m.s.a. no. 132. of 1934) has been preferred and this c.m.s. a. and c.r.p. no. 306 of 1933 have come on for hearing together.2. one of the questions for decision is whether an appeal lay against the order passed under order xxi, rule 93, by the district munsif ordering refund of the purchase money. on behalf of the appellant three cases have been quoted which directly bear on this question. the first is krishna bkupati v. venkataswamy 3 lw 105 : 33 iad. cas. 235 : air 1917 mad. 217.....
Judgment:

Horwill, J.

1. In execution of a decree, a sale was held on June 24, 1922, which was confirmed on July 25, 1922.. An application to aside the sale was made and an order passed setting aside the sale on December 17, 1923- There was an appeal to the District Judge, a second appeal to the High Court, and a Letters Patent Appeal from the judgment in second appeal. All these appeals to which the decree-holder and the auction-purchaser were parties were dismissed; the first appeal on November 12, 192t, the second appeal on February 21, 1928, and the Letters Patent Appeal on September 13, 1929. The present application was put in under Order XXI, Rule 93, by the auction-purchaser for refund of the purchase money, as the sale had been set aside. This was on August 29, 1932. The question arises whether this application, is barred by limitation, which would depend on whether, as contended by the decree holder, three years are allowed from the date of setting aside the sale or, as contended by the auction-purchaser, three years from the dismissal of the Letters Patent Appeal on September 13, 1929. The District Munsif of Pat-tukottai held that the application was in time. Against that finding the decree-holder preferred a revision petition to this Court (C.R.P. No. 308 of 1933) and at the same time appealed to the District Judge. The District Judge transferred the appeal to the Subordinate Judge, who held that the application was barred and dismissed the application. Against that finding this appeal (C. M.S.A. No. 132. of 1934) has been preferred and this C.M.S. A. and C.R.P. No. 306 of 1933 have come on for hearing together.

2. One of the questions for decision is whether an appeal lay against the order passed under Order XXI, Rule 93, by the District Munsif ordering refund of the purchase money. On behalf of the appellant three cases have been quoted which directly bear on this question. The first is Krishna Bkupati v. Venkataswamy 3 LW 105 : 33 Iad. Cas. 235 : AIR 1917 Mad. 217 : (1916) 1 MWN 109, in which Sadasiva Iyer and Moore, JJ. held that in an application under Order XXI, Rule 93, no appeal lay. Another case of this Court referred to is Kunhammad v. Chathu 9 M 437,' which was decided similarly. In both these cases no argument was adduced and I doubt whether they are any longer good law; for, they seem to have been decided on the assumption that an auction-purchaser is a stranger to the suit and that any point that arises between him and the parties to the suit did not therefore fall within the scope of Section 47. There can be no doubt from a very large number of cases decided in this Court and in other High Courts that the auction-purchaser can be looked upon as a representative of a judgment-debtor or decree-holder and, further, that when there is a matter in dispute between the decree-holder and the judgment-debtor, it makes no difference that the actual application which raises the matter is made by a stranger. The third case referred to is Rahim Baksh v. Dhuri 12 A 397 : AWN 1890, 135, which is to the same effect. There is very little discussion even in that judgment; and the many cases referred to therein show that there was a very considerable conflict of authority on this point before Rahim Baksh v. Dhuri 12 A 397 : AWN 1890, 135, was decided. That case is certainly no longer good law in Allahabad: for a Full Bench of the Allahabad High Court has given a definite finding to the contrary in Bindeshri Prasad v. Badal Singh : AIR1923All394 .

3. On the other side, there is no direct decision on this point excepting Bindeshri Prasad v. Badal Singh : AIR1923All394 , but a number of cases have been quoted in which it has been pointed out that matters in dispute between the auction purcaaser and the parties to the suit come properly under Section 47, Civil Procedure Code, it they relate to the execution, discharge, and satisfaction of the decree. In Veyindramuthu Pillai v. Maya Nadan 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), there was a conflict between the auction-purchaser in execution of a money decree, who was a stranger and the auction-purchaser (decree-holder) in execution of a mortgage decree. The stranger auction-purchaser contended that he was a purchaser for value without knowledge of the mortgage, whereas the decree-holder purchaser contended that the purchase was made lis pendens and was therefore not binding on him. It was- there held that the auction-purchaser was a representative of the judgment-debtor. The question whether the matter arose m execution was not decided by the Full Bench, as a definite finding that it did so arise had been given by the referring Judges. The scope of Veyindramuthu Pillai v. Maya Nadan 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), was explained very fully in the judgment of Krishnan, J. in Jainulabdin Sahib v. Krishna Chettiar 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491. There, the judgment-debtor, in a separate suit, contended that the auction-purchaser had trespassed on some of his lands which had not been sold: but the Court found that although the lands in question were not the subject-matter of the mortgage or of the decree and were not even sold: yet the Amin had by mistake actually delivered them to the auction-purchaser and that there was no trespass. It was held, following the Full Bench case, that this was a dispute in which the judgment-debtor and the decree-holder were adversely interested and that it did not matter that it was the auction-purchaser with whom the judgment-debtor was actually contending. It was therefore held that the judgment-debtor should have raised this matter in execution and that a separate suit did. not lie. In Surimuthu Pillai v. Muthukrishna Pillai 65 MLJ 253 : 143 Ind. Cas 854 : AIR 1933 Mad. 598 : 56 M 808 : Ind. Rul. (1933) Mad 339 : 38 LW 138 : (1933) MWN 1081, there was a sale: but before confirmation had been ordered, the decree itself was set aside in appeal. The sale was confirmed and an application was then put in to set aside the sale under Sections 47,151 and Order XXI, Rule 89. It was held that Order XXI, Rule 89, did not apply; and the same test was applied by Madhavan Nair J. in this case as was applied in Jainulabdin Sahib v. Krishna Chettiar 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491, whether the judgment-debtor and the decree-holder were adversely interested in the point in dispute. It was held that they were and that therefore Section 47 did apply and the matter could be gone into in execution It is not difficult, 1 think, to distinguish these three cases from the present case-for in all three of them it was very clear that the matters in dispute did arise in execution. It is, however, argued that in the present case the dispute is one relating to the discharge and satisfaction of the decree: because if the auction purchaser succeeds, the decree would be un-satisfied; whereas if he fails the deeree-holder will have retained possession of the money and the decree will be satisfied. This seem to be the view taken in Bindeshri Prasad v. Badal Singh : AIR1923All394 . After approving the decision of the Full Bench of the Madras High Court in Veyindramuthu Pillai v. Maya Nadan 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), that a stranger purchaser at a Court auction is entitled and bound to have any question relating to the satisfaction of the decree decided under Section 47, Civil Procedure Code, the judgment goes on to discuss the Privy Council case, Prosonno Kumar Sanyal v. Kali Das Sanyal 19 C 683 : 19 IA 166, 6 Sar. 209 (PC), in which their Lordships remarked that Courts in India were right in not placing too narrow a construction on the language of Section 244 (the present Section 47). It then refers to a recent decision of the same Court in Sitaram v. Janki Ram : AIR1922All200 , with approval. The authority of this ruling is weakened by the fact that the Judges were undoubtedly influenced by the equities of the case before them; for they say:

We are entitled to treat this application as coming within the provisions of that section. Even if we were not so satisfied, we should have been,pre-pared to grant the relief asked for on the analogy of Section 144, in exercise of our inherent power under Section 151 of the Code. There is admittedly no question outstanding between the parties except that which has been decided in this appeal, and to require the question to be now tried out in a regular suit would be merely to put the parties to unnecessary expense.

4. However, a very definite finding has been given, and it is incumbent on me to give it the very greatest respect. Apart from Bindeshri Prasad v. Badal Singh : AIR1923All394 , this question does seem to have been left in some uncertainty; but on a general examination of the current of cases, bearing on the interpretation of Section 47, there is certainly a very strong tendency to give it a wide application and to bring within its scope questions arising between the parties to the suit and the auction-purchaser. As has been pointed above, the matter now in dispute does, to some extent, relate to the discharge and satisfaction of the decree. I therefore find that an appeal and second appeal do lie.

5. When this appeal first came' up for hearing, it was admitted that the Article of the Limitation Act to be applied; was 181 but the learned Advocate for the auction-purchaser now suggests that the. appropriate Article would be 182. There is no direct authority, but the matter has been argued on the analogy of an application under Order XXI, Rule 93, Civil Procedure Code, to an application under Section 144, Civil Procedure Code, for restitution. There has been a considerable conflict of authority whether applications for restitution are governed by Article 181 or Article 182, but the weight of authority is that they are governed by Article 181. Full Benches of the Allahabad and Patna High Courts have said so and the question has been much discussed in Calcutta, where the same conclusion was reached.

6. However, there is authority in Madras for the position that applications under Section 144 relate to execution and that Article 182 therefore, applies. The leading Madras case is Somasundaram v. Chockalingam 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 and the reason given is this:

The language of Section 583 of the old Code was not wide enough to cover all cases of benefits arising from the reversal of a decree being fully realized by the successful party. Apart from this change, we see no ground for holding that Legislature intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code restitution was by way of execution: see Prag Narain v. Kamakhia Singh 31 A 551 : 3 Ind. Cas 798 : 13 OC 180 : 36 IA 197 : 10 CLJ 257 : 11 Bom.LR 1200 : 6 MLT 303 : 14 CWN 55 : 19 MLJ 599 (PC). The same rule applies to similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution.

7. So that the reason why Courts in Madras have followed Somasundaram v. Chockalingam 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 is that restitution was considered to be by way of execution under the old Code and that no change was made in the new Code. Even apart from that, it is not difficult to see that restitution does arise by way of execution: for in executing the decree of the Court which reverses a decree of a lower Court, account has necessarily to be taken of any changes in the positions of the parties that have taken place since the passing of the decree that has been reversed, For example, if one Court states that A should hand over possession to B and he does so in execution and the Appellate Court states that possession should be with A, it is in execution of the Appellate Court decree that possession is given back to A by B. It is difficult to apply similar reasoning to an application under Order XXI, Rule 93. Article 182 sets out the period of limitation for the execution of a decree or order but an auction-purchaser who applies for the return of the purchase money is certainly not attempting to execute any decree or order. Order XXI. Rule 93, merely gives the auction-purchaser an equitable relief by way of returning to him the money that he has already paid into Court because of some order passed under Order XXI, Rules 89 to 92, depriving him of land for which he has already paid. Were it not for the provisions of Order XXI, Rule 93, he would be driven to a separate suit. In a recent case decided in this Court by Lakshmana Rao, J. Muniah v. Gangamma (1931) MWN 1006 an auction-purchaser claimed restitution under Section 144 (and not under Order XXI, Rule 93) by virtue of the fact that the sale was set aside because of a successful application under Order XXI, Rule 63. Lakshmana Rao, J. held that Section 144 does not apply only to cases where a decree or order is reversed in appeal, but also where an order is made of no effect by virtue of other proceedings, so that when a claimant became successful in a suit filed under Order XXI, Rule 63, the Court was empowered under Section 144 to put all the parties, including the auction-purchaser, in the same position as they would have been if the claim had been upheld in the first instance. This case is clearly distinguishable from the present one. There are no grounds for holding that Article 182 applies to an application under Order XXI, Rule 93.

8. Assuming as was originally conceded that Article 181 is the provision of the Limitation Act that governs this application, it would certainly follow from a plain reading of Article 181 that time began to run from the date of the passing of the original order setting aside the sale. It is, however, argued, on the analogy of orders passed on applications under Section 144 or for the passing of a final decree, that it is from the date of the decree of the final Appellate Court confirming the decree of the first Court that time must be reckoned. That in the case of an application for a final decree time has to be reckoned from the preliminary decree of the final Appellate Court has certainly been established beyond all doubt. The Privy Council in Jowad Hussain v. Gendan Singh 6 Pat 24 : 98 Ind. Cas. 499 : AIR 1926 PC 93 : 53 IA 197 : 24 ALJ 765 : (1926) MWN 591 : 44 CLJ 63 : 3 CWN 690 : 24 LW 394 : 7 PLT 575 : 31 CWN 58 : 51 MLJ 781 : 28 Bom. LR 1395 (FB) has approved the remarks made in Gajadhar Singh v. Kishen Jiwan Lal : AIR1917All163 to the effect that:

The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties.

and that:

when the Munsif passed the decree it was open to the plaintiff or the defendant to accept the decree or to appeal. If an. appeal is preferred, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final between the parties.

9. Similar reasoning was adopted by this Court in Venkayya v. Sathiraju 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180. If there had been no decisions on applications other than those for final decrees, the position of the appellant world have been a strong one. Another group of applications, upon which there has been considerable authority, is that of applications for restitution under Section 144, which, in the opinion of most of the High Courts, comes within the scope of Article 181. As has already been pointed out, an application for restitution can be looked upon as one arising in execution of a decree and some Judges while holding that Article 181 applied, have nevertheless been of opinion than such an application was akin to one in execution and so held, on the analogy of Article 182, that the Legislature must have intended that where there were appallate decrees the decree of the final Appellate Court was the decree from which time should be calculated. In view of the fact that Article 182 expressly lays down that time should be reckoned from the date of the last decree whereas Article 181 does not Bay so, it is rather difficult to argue by analogy from Article 182 to Article 181. The main current of authority on this point is undoubtedly to the effect that time does run from the date of the first decree. The matter was very fully considered by a Full Bench of the Allahabad High Court in Parmeshwar Singh v. Sitladin Dube : AIR1934All626 and the majority of the Judges found themselves unable to accept the argument that the proceedings were akin to execution proceedings and that the same principle that time should be reckoned from the date of the final Appellate Court decree should be followed. The Calcutta High Court has consistently held the same view. In Muthukaruppan Chettiar v. Annamalai 11 R 275 : 149 Ind. Cas. 889 : AIR 1933 Rang. 180 : 6 R Rang.337 a contrary view was held. Rambujhavan Thakur v. Bankey Thakur : AIR1928Pat598 , was there referred to and the opinion was expressed that it was difficult to see in what way an application for the passing of a final decree differed in this respect in principle from an application for restitution. If it was the operative decree of the final Appellate Court that had to be taken into account in reckoning the time allowed for applying for a final decree, then for the same reason it would be the decree of the final Court of Appeal that should be taken into account in reckoning the time for restitution proceedings. Even if this reasoning is valid, it is very difficult to see how a mere application to return purchase money can be assimilated to an application for the passing of a final decree or even to one for restitution of the nature of an execution of a decree.

10. Cases dealing with certain other applications seem to me to be more analogous to the present application for a refund of purchase money. In Juscurn Boid v. Pirth Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) the provision of the Limitation Act applied was Article 97 ''for money paid upon an existing consideration which afterwards fails'. There the same question arose as to whether time had to be reckoned from the date of the decree of the lower Court or from the date of the decree of the Appellate Court which confirmed the judgment of the lower Court. Their Lordships there pointed out that as in India an original decree is not suspended by the presentation of an appeal nor is its operation interrupted when the decree on appeal is one of dismissal, and that as consideration failed at the date of the first decree, the mere fact that an appeal had been filed did not suspend the cause of action and that throughout the pendency of the proceedings in the Appellate Courts time was running against the plaintiff. This case is of very great importance and has been discussed in all the cases relating to applications for restitution whichever way Courts have eventually decided. It has been taken as an authority by the Allahabad and Calcutta High Courts with regard to restitution proceedings on the ground that as the section clearly says that the period of 'limitation under Article 181 is three years from the time when the right to apply accrues, time must be calculated from the date on which the right accrued, because the cause of action is not interrupted by the subsequent filing of an appeal. In Ashutosh Chowdhury v. Kumed Kamini Dassi : AIR1933Cal422 a sale was set aside and money refunded to the auction-purchaser. The decree-holder appealed but the sale was confirmed. A second appeal was filed which was also dismissed. Another judgment-debtor who was not a party to the appeals then filed a suit for the return of the money which had been drawn by the auction-purchaser. The suit was filed more than three years from the date of the original decree but less than three years from the date of the appellate decree. In that case the Judges felt themselves bound by the Privy Council decision just referred to. They say that:

In construing the provisions of the Limitation Act, equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. In this view we are of opinion that the right to apply accrued as soon as the order of the District Judge was made in August 1925, confirming the sale and that as the present application was not made within three years from that date, it has been rightly held that the application was barred by limitation.

11. No doubt in that case the plaintiff was on a specially weak ground as he had not been a party to the appeals; and this was pointed out in the judgment in this case as being an a fortiori reason for dismissing the suit. There can be no doubt, however, that the case would have been decided against the plaintiff even if those special considerations had not existed. In Harish Chandra Shaha v. Chandra Mohan Dass 28 C. 113 an ex parte decree was passed and execution took place. The ex parte decree was subsequently set aside and the judgment-debtor applied for a return of the money realized in execution. There, too, it was held that three years should be calculated from the date of setting aside the ex parte decree. In Pakuran v. Kandan Kutti 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 it was found that a vendor had no saleable interest. That decree was appealed against but dismissed. A suit was then brought for damages for breach of covenant of title by the vendee and it was held, distinguishing Venkayya v. Sathiraju 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 which contained an obiter to the effect that Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) had no application to Article 182 and that it would be strange if the basis for calculating the limitation under Article 181 differed from that under Article 182, that time began to run, from the date of the first decree and not from the date of the appellate decree: Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) was there followed. The reason for distinguishing Venkayya v. Sathiraju 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 was that applications under Section 144 were of the nature of applications in execution. Although none of the cases immediately referred to above Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC), Asutosh Chowdhury v. Kumed Kamini Dassi : AIR1933Cal422 , Harish Chandra Shaha v. Chandra Mohan Dass 28 C 113 and Pakuran v. Kandan Kutti 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 deals with precisely the point raised in this application, yet it seems that the same principles have to be applied in this case as in those just quoted. The present application was a simple one under Order XXI, Rule 93, for the return of money and the right to make that application accrued immediately the order setting aside the sale was made. As the cause of, action was not suspended by the filing of the second appeal and Letters Patent Appeal, time went on running against the appellant throughout the conduct of those proceedings. As pointed out in Asutosh Chowdhury v. Kumed Kamini Dassi : AIR1933Cal422 . Courts are not entitled to import equitable considerations when the Legislature has made it clear what time should be allowed for filing applications. I, therefore, hold that the present application was out of time. I must mention before concluding a direct decision in favour of the appellant in Giridhari Lal v. Sital Prasad 11 A 372 : AWN 1889,113. That decision was by a Single Judge. It is moreover, a very old one, and it was decided on purely equitable considerations. It seems never to have been quoted or cited before any other Court and its authority at present must be very little.

12. An alternative argument has been put forward on behalf of the appellant that as he joined with the decree-holder in preferring the appeals, he could not at the same time apply for a refund of the purchase money and that it could not be said that the right accrued to the applicant in pursuing the strictly alternative relief to have the sale upheld. The learned Subordinate Judge in appeal disposed of this argument very summarily by saying that he was unable to follow the reasoning and that if the appellant chose to take the matter in appeal, it was his own fault and he did so at his own risk. I quite agree with. what the learned Subordinate Judge has said. The appellant had two remedies and there was no reason why he should not have adopted both at the same time, one being kept pending until the other was disposed of. He had a choice and must accept the consequences of having made the wrong one. In result the appeal is dismissed with costs.

13. The Civil Revision Petition was unnecessary and is dismissed without costs. (Leave granted).


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