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Sistla Venkata Sastri Vs. Zernini Venkatagopaludu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in85Ind.Cas.209
AppellantSistla Venkata Sastri
RespondentZernini Venkatagopaludu
Cases ReferredAnavarda Khan v. Misiri Khan
Excerpt:
civil procedure code (act v of 1908), section 47 - execution of decree--'between parties to the suit' meaning of--decree for specific performance of contract on payment of purchase-money--contest between judgment-debtor inter se as to right to receive purchase money, decision of--suit, separate, whether maintainable. - .....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), gangadharadu and another for possession of the properties; and o.s. no. 473 of 1909 was by gangadharudu (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. original suit no. 352 of 1909 was dismissed and it was found in the litigation between these parties that gopaludu was only a benamidar for.....
Judgment:

Madhavan Nair, J.

1. The facts necessary for deciding this case 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, put 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), Gangadharadu and another for possession of the properties; and O.S. No. 473 of 1909 was by Gangadharudu (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. Original Suit No. 352 of 1909 was dismissed and it was found in the litigation between these parties that Gopaludu was only a benamidar for Seshayya, 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 Nos. 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 Gangadharudu receiving the balance of the purchase money (viz., Rs. 1,300). 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 should receive the purchase-money. The present defendant, thereupon, executed a deed and applied for a cheque for the amount of Rs. 1,300 lying in deposit. The present plaintiff opposed this, application but the cheque was ordered to issue to the present defendant and he re-received the sum of Rs. 1, 300.

2. 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.

3. The only question argued in this second appeal is whether the present suit is barred by Section 47, C.P.C., or, in other words, whether the order, Ex. 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, C.P.C. 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 has not been argued by the learned Vakil for the appellant that the question that was decided in Ex. 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, C.P.C. is not a bar to the present, suit. In Samalapalli Mangayya v. Samalapalli Sriramulu 19 Ind. Cas. 448 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 party 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,' 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 an instance partition suits where parties who are co-defendants are often arrayed against each other. In Thoppai Vedavisa Aiyar v. The Madura Hindu Sabha Nidhy, Co. Ltd. 77 Ind. Cas. 148: (1923) M.W.N. 662 also, the learned Judges decided that the question as, to the order in which the items of 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 is stated in that decision: ' We can see no reason for acceding to the suggestion that we should limit the scope of Section 47, C.P.C. 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 Prosunno Kumar Sanyal v. Kali Das Sanyal 19 I.A. 166 : 6 Sar. P.C.J. 209 the cheap and speedy settlement of all disputes at the stage of execution.' The decision in Budaraju Hanumantha Rao v. Allamneni Krishnamma A.I.R. (1924) (M.) 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, C.P.C. vide Ramaswami Sastrulu v. Kameswarama 8 Ind. Dec. 653. 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 Samalapalli Managayya v. Samalapalli Sriramulu 19 Ind. Cas. 448 : 13 M.L.T. 347 and Thoppai Vedaviasa Aiyar v. The Madura Hindu Sabha Nidhi Co., Ltd. 77 Ind. Cas. 148 : 18 D.W. 311 : A.I.R. (1924) (M.) 365, should be confined to mortgage and partition suits. He, however, relies upon a decision in Anavarda Khan v. Misiri Khan 35 Ind. Cas. 179, 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, C.P.C. 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 decisions of the Calcutta and Allahabad High Courts brought to my notice do not materially help us in deciding this case.

4. I, therefore, hold that the plaintiff's suit is barred by Section 47, C.P.C. and dismiss the second appeal with costs.


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