Krishnan Kartha v. Kumaraswami Namboodiripad — 1950 DIGILAW 57 (KER)

Judgment :- 1. The application by the revision petitioner under 0.21 R. 97 C.P.C. for re-delivery of the property mentioned therein was dismissed by the lower court by the order sought to be revised. He had purchased this property on 20.6.1114 in auction under the Revenue Recovery Act and secured possession on 19.4.1117. The decree in the present case was passed on 22.6.1113 allowing the plaintiff to realise certain sums of money charged on the properties scheduled therein. Item 7 there is S. No. 310/5 which is the property sold in revenue auction. In execution of this decree portion of the money was realised and for the balance item 7 was sold in court auction on 19.8.1117 and purchased by the assignee-decree-holder. It was delivered over to the auction purchaser and the Amin filed his report to that effect on 16.10.1110. It is for the redelivery of this property that the petition was filed before the lower court. 2. The learned Munsiff dismissed the petition on the ground that it had not been proved that the revenue sale was for arrears of Sirkar tax due from this S.No. 310/5. As such it was the view of the lower court that the revision petitioner could rank only as a transferee pendente lite and that the decree and execution proceedings in this case would be binding on him. 3. Exts. I and II would show that the revenue sale was for arrears of tax due under Thandaper No. 144 of Thuravoor Vadakku pakuthy. Copy of this Thandaper No. 144 has been produced in this case and it is referred to by the Munsiff himself. That would show that the property in question is in that Thandaper. That is the twelfth item in page 3 of that document. Copies of the Revenue Sale diary and the Mahazar prepared at the time of attachment were produced in this court. Apart from these there is clear evidence to show that S. No. 310/5 is in Thandaper No. 144 and the opposite side did not dispute this. It had been held by a Full Bench in Narayanan v. Naina Muhammathu (28 T.L.J. 226) that a sale held for arrears of revenue is valid and will extinguish prior encumbrances even though it was held for recovery of arrears due on the land sold as well as other lands belonging to the defaulter. It had been held by a Full Bench in Narayanan v. Naina Muhammathu (28 T.L.J. 226) that a sale held for arrears of revenue is valid and will extinguish prior encumbrances even though it was held for recovery of arrears due on the land sold as well as other lands belonging to the defaulter. Thus the view of the court below that the land sold in revenue auction could be free of all encumbrances only if such sale was for arrears of tax due on that land is not correct. The sale was for arrears of tax under a Thandaper for this and other properties and that sale will also be free of all encumbrances. It may also be mentioned that copy of the Thandaper produced would show that tax due from this property was also in areas. Thus the order passed by the learned Munsiff is wrong and has to be set aside. 3. But some difficulty had been created by an observation of a Division Bench in Janaki Amma v. The Dewan of Travancore (1949 T.L.R. 36) that the doctrine of lis pendens applies both to voluntary and involuntary sales including revenue sales. The revenue sale in question was in 1114 when this charged decree was pending execution. The observation thus made in 1949 T.L.R. would therefore indicate that the revenue sale is vitiated by lis pendens and that will not affect the rights of the auction purchaser in execution of the decree. This observation or dictum is against the decision of the Full Bench in 28 TLJ 226. That holds that a revenue sale puts an end to all the charges whether those charges had merged in a decree of court or not. Otherwise there would be no meaning for the provisions in Ss. 2 and 39 of Act I of 1068 that the land, the buildings upon it, and its products shall be regarded as security for the Public Revenue on such land, and that all lands brought to sale on account of arrears of revenue due thereon shall be sold free of all encumbrances. If the said observation in 1949 TLR 36 purports to lay down a proposition of law, I would with all respect, state that the law was not correctly stated and that it is opposed to the Full Bench ruling in 28 TLJ 226. If the said observation in 1949 TLR 36 purports to lay down a proposition of law, I would with all respect, state that the law was not correctly stated and that it is opposed to the Full Bench ruling in 28 TLJ 226. I would therefore prefer to follow 28 T.L.J. 4. But it appears to me that the observation mentioned above was mere obiter dictum. That case also dealt with a revenue sale. The sale related to an item of property belonging to the plaintiff's tarwad and the revenue sale was conducted after notice to a junior member had secured Patta to the property. It was also held there that the revenue sale was brought about by the junior member in collusion with the auction purchaser and that the same would not be binding on the tarwad as the proper person to represent the tarwad was not a party to revenue proceedings. (Vide the findings at pages 38 and 39 of the report). These findings were quite sufficient to dispose of the matter before Their Lordships who decided the case. It was therefore unnecessary to invoke the aid of certain suits relating to the property pending at the time of the revenue sale. Thus the observation regarding the applicability of the rule of lis pendens was mere obiter dictum. 5. I have also to mention here that the said observation was made on the authority of certain rulings of the Indian High Courts the earliest of which was Har Shankar Prasad v. Shew Gobind Shaw (I.L.R. 26 Cal. 966). The other Indian rulings had only blindly followed this 26 Calcutta Case. This therefore necessarily leads me to consider to what extent the 26 Calcutta Case would support the observation in 1949 T.L.R. 36. The facts of the Calcutta Case were as follows: J and A had certain shares in 2 annas 8 pie Patti in Mehal Shava. They had executed a mortgage for this share to one H who obtained a decree on the same on 31st August 1889. In execution the interest of J and A was purchased by the 1st plaintiff and another who transferred his right to the 2nd plaintiff. This sale was confirmed on 5th March 1892. They had executed a mortgage for this share to one H who obtained a decree on the same on 31st August 1889. In execution the interest of J and A was purchased by the 1st plaintiff and another who transferred his right to the 2nd plaintiff. This sale was confirmed on 5th March 1892. In the meantime, that is to say, on the 28th March 1891, the ijmali kalam of a 2 anna 8 pie share fell into arrears, and the owners failed to pay the Government revenue, the result being that on the 30th September the said ijmali kalam was sold up and purchased by a certain person who subsequently transferred his interest to the defendants in that case. The question that was raised in that case was as to the relative rights of the plaintiffs and defendants under the circumstances mentioned above. Their Lordships at page 970 decided the question of lis pendens thus: "We need hardly state that the sale of the defendants was under the provisions of Ss. 13 and 54 of the Revenue Sale Law, so that he acquired the share 2 annas 8 pie thus sold, subject to the incumbrance which Jagdamba Prasad Singh had created in favour of Harbans Sahai, and subject also to the lien declared under the decree of the 31st August 1889. That being so, it follows that the defendants after acquisition of the property by them under the Revenue Sale Law were bound to discharge the mortgage existing in favour of Harbans Sahai before the sale actually took place, or before, at any rate, that sale was confirmed on the 5th March 1892; but they failed to do so, and we think the learned judge is perfectly right in holding that the principle of lis pendens applies, and that the plaintiff is entitled to relief in this case". 6. It was because of the peculiar principle enacted by the Revenue Sale Law that the Rule of lis pendens was applied in that case. This would become further clear by the following observations at page 972. "It has been contended on behalf of the respondents that it was the duty of the plaintiffs to have saved the 2 anna 8 pie ijmali kalam from being sold for payment of the arrears. This would become further clear by the following observations at page 972. "It has been contended on behalf of the respondents that it was the duty of the plaintiffs to have saved the 2 anna 8 pie ijmali kalam from being sold for payment of the arrears. That right no doubt have been a wise course to pursue, but having regard to S. 54 of the Revenue Sale Law, it seems to us to be quite clear that the defendants, though they may be taken to have acquired under the sale the 2 anna 8 pie ijmali kalam, acquired it subject to the incumbrance that had already been created in favour of Harbans Sahai and were bound in law to discharge that incumbrance; and the time they had to do so was the period between the 30th September 1891, the date of their purchase, and the 5th March 1882, the date when the sale was confirmed." 7. A rule laid down on the specific provisions of law in an enactment could not be made applicable to a case arising under another enactment with different provisions. In my view, 26 Calcutta Case could not be an authority to what is observed in 1949 T.L.R. 36. I shall conclude this by referring to the ruling in Ponnuswami Chettiar v. Ellasari Obul Reddy (A.I.R. 1939 Madras 256). That was a case arising under the Madras Estates Land Act I of 1908. Under S. 5 of that Act the right of the land-holder to his rent is a first charge on the land. S. 125 of that Act provided that when the land was sold for arrears of rent in respect thereof, the purchaser takes free of all encumbrances except such as have been created with the land-holder's permission or have been created prior to the passing of the said Act. In that case the land was sold by the Collector for arrears of rent and it was held that, by virtue of the provisions mentioned above, such sale was not affected by a pending suit on a mortgage executed by the ryot who was in default. The provisions in Ss. 5 and 125 correspond to Ss. 2 and 39 of the Revenue Recovery Act so that this ruling will in principle apply to the Revenue Sales held under the latter Act. The provisions in Ss. 5 and 125 correspond to Ss. 2 and 39 of the Revenue Recovery Act so that this ruling will in principle apply to the Revenue Sales held under the latter Act. I am therefore of the view that pending suits or decree based on mortgages or other charges created by a land-holder would not in any way affect a revenue sale held under Act I of 1068 (Travancore) for arrears of tax due from the land sold or from that land and other lands included in the same patta or Thandaper, and that the auction-purchaser gets the land purchased free of all encumbrances. 8. The order of the lower court is thus set aside and this petition allowed with costs. The lower court will take steps to re-deliver S. No. 310/5 to the revision petitioner. Advocate's fee will be Rs. 30. Petition allowed.