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S. Venkata Sastri Vs. Y. Venkatagopaladu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad353
AppellantS. Venkata Sastri
RespondentY. Venkatagopaladu
Cases ReferredAnavarsada Khan Pani Sahib v. Misiri Khan Pani Sahib
Excerpt:
- .....defendant respectively, in the suit.and cite, as instance, partition suits, where parties, who are codefendants are often arrayed against each other. in vedaviasa aiyar v. madura hindu labha nidhi co. ltd., a.i.r. 1924 mad. 365 also, the learned judges decided that the question as to the order in which the items lot property are to be sold arising between the defendants in the case, was also a question, which arose between the parties to the suit, though the parties were not arrayed as plaintiffs and defendants in the suit. it was stated in that decision:we can see no reason for acceding to the suggestion that we should limit the scope of section 47, civil procedure code, in the way suggested, when to do so would exclude from its purview the decision of many of the questions which must.....
Judgment:

Madhavan Nair, J.

1. The facts necessary for deciding this ease are not sufficiently stated in the appellate judgment. The plaintiff is the appellant. He entered into a contract of sale of some properties with one Gangadharudu for Rs. 1,500 and after receiving Rs. 200 from him, as earnest money, pub him in possession of those properties. Subsequently, he executed a sale deed to Gopaludu (the defendant in the present suit) for a consideration of Rs. 2,000. Both the vendees instituted suits against the plaintiff, for appropriate reliefs; O.S. No. 352 of 1909 was by the second vendee (the present defendant) against his vendor (the present plaintiff). Gangadharudu and another for possession of the properties and O.S. No. 473 of 1909, was by Gaugadharmlu (the first vendee) for specific performance of the contract against his vendor (the present plaintiff), subsequent vendee (the present defendant) and another Seshayya. Both suits were ultimately, tried together. O.S. No. 352 of 1909 was dismissed and it was found in the litigation between these parties that Gopaludu was only a benamidar for Sesbayya, the 3rd defendant, in O.S. No. 473 of 1909, and had no real interest in the transaction. The decree in O.S. No. 473 of 1909 directed that either defendants 1 and 2 (the present plaintiff and defendant) jointly or the 2nd defendant {viz., the present defendant) alone do execute a registered sale deed to Gangadbarudu, receiving the balance of the purchase money, viz., Rs. 1300. The decree did not specifically say who should receive the amount; but, in connection with the application to execute the decree it was decided that the present defendant, Gopaludu, was the proper person to execute the sale-deed and the person, who executes the sale-deed should receive the purchase money. The present defendant, thereupon executed a deed and applied for a cheque for the amount of Rs. 1,300 lyign in deposit. The present plaintiff opposed ' this application; but the cheque was ordered to issue to the present defendant) and be received the sum of Rs. 1,300. Some time after this order, a pending suit, which had been instituted by the present defendant for Rs. 2,000, was decided against him, on the ground that he was only a benamidar, that he had no title to the property and that a suit by him was not maintainable. The suit, out of which the present second appeal has arisen was filed by the plaintiff-appellant for the recovery of Rs. 1,300 taken away by the defendant, in the execution proceedings, in O.S. No. 473 of 1909.

2. The only question argued in this second appeal is whether the present suit is barred by Section 47, Civil Procedure Code, or in other words, whether the order Exhibits M directing that the money deposited by the plaintiff in O.S. No. 473 of 1909, should be paid to the present defendant, who was the 2nd defendant in that suit was one passed under Section 47, Civil Procedure Code, in execution of the decree passed therein and therefore, no separate suit is maintainable by the present plaintiff who was the 1st defendant in that suit. It hag not been argued by the learned vakil for the appellant that the question that was decided in Exhibit M, is not one, relating to the execution, discharge or satisfaction of the decree; but it was argued by him that the question is not between the decree-holder, on the one hand and the judgment-debtor on the other, but one between the judgment-debtors, namely, the defendants, inter se and therefore, Section 47, Civil Procedure Code, is not a bar to the present suit. In Mangayya v. Sriramulu : (1913)24MLJ477 , the question arose between two defendants, in the course of execution of a mortgage decree, as to whose property should be sold first. The learned Judges point out:

Although the 5th and 10th defendants were both arrayed as parties defendants, they were arrayed against each other, so far as the question whether any of the items of the mortgaged properties should be first sold was concerned.

3. And they proceed to say:

The expression 'between the parties to the suit,' no doubt, imports 'between parties opposed to each other in the suit' but does not necessarily mean 'between parties, who are plaintiff and defendant respectively, in the suit.

and cite, as instance, partition suits, where parties, who are codefendants are often arrayed against each other. In Vedaviasa Aiyar v. Madura Hindu Labha Nidhi Co. Ltd., A.I.R. 1924 Mad. 365 also, the learned Judges decided that the question as to the order in which the items lot property are to be sold arising between the defendants in the case, was also a question, which arose between the parties to the suit, though the parties were not arrayed as plaintiffs and defendants in the suit. It was stated in that decision:

We can see no reason for acceding to the suggestion that we should limit the scope of Section 47, Civil Procedure Code, in the way suggested, when to do so would exclude from its purview the decision of many of the questions which must inevitably arise only after the decree, and when the result would be to frustrate the object of the section recognised by the Privy Council in Prownno Kumar Sanyal v. Kali Das Sanyal (1892) 19 Cal. 683 the cheap and the speedy settlement of all disputes at the stage of execution.

4. The decision in Hanumantha Rao v. Krishnamma A.I.R. 1924 Mad. 518 also seems to support the same view. Even a defendant, who has been exonerated from a suit, would on a liberal construction, be treated as one of the parties to the suit, within the meaning of Section 47, Civil Procedure Code: Ramaswami Sastrulu v. Kameswaramma (1900) 23 Mad. 361. I cannot agree with the suggestion of the learned vakil for the appellant, that the interpretation put upon the term 'parties' to the suit in Mangayya v. Sriramulu : (1913)24MLJ477 , and Vedaviasa Aiyar v. Madura Hindu Labha Nidhi Co., Ltd. A.I.R. 1924 Mad. 365 should be confined to mortgage and partition suits. He, however, relies upon a decision in Anavarsada Khan Pani Sahib v. Misiri Khan Pani Sahib : (1916)31MLJ44 , where it was held that disputes between judgment-debtors inter se, as to possession of property after satisfaction of a decree, would not be disputes between parties to the suit, within the meaning of Section 47, Civil Procedure Code. In that case, it was pointed out by Sadasiva Iyer, J., that the decree-holder had absolutely no interest in the question that was raised by the judgment-debtors. I do not think that the same can be said about the decree-holder, in this case. As pointed out by the Subordinate Judge, Gangadharudu, the decree-holder in O.S. No. 473 of 1909, who deposited the balance of purchase money, was certainly interested, in seeing that the money was paid to the proper person. The other decision of the Calcutta and Allahabad High Courts brought to my notice do not materially help us in deciding this case.

5. I, therefore, hold that the plaintiff's suit is barred by Section 47, Civil Procedure Code, and dismiss the Second Appeal with costs.


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