Krishna Menon v. Ouseph Michael — 1950 DIGILAW 75 (KER)

Judgment :- 1. The decree-holder in O.S. 300 of 1101 on the file of the Munsiff's Court at Ernakulam, who is the counter-petitioner in M.P. 2398 of 1123 of the same court, has filed this petition seeking a revision of the order passed by the lower court on M.P. 2398. As per the redemption decree passed in his favour in O.S. 300 of 1101, he obtained delivery of the decree-properties through court on 3.10.1123. 34 cents of property comprised in Survey No. 1246 was also involved in that suit and was delivered over to the petitioner on 3.10.1123. The present controversy relates to this item of property. The petitioner in M.P. 2398 claimed to be in independent possession of this property in his own right and contended that he was wrongfully dispossessed by the decree-holder in O.S. 300 of 1101. On these allegations, he filed M.P. 2398 under O. 21, R. 97 of the Cochin Civil Procedure Code (corresponding to 0. 21, R. 100 of the Indian Code) and prayed for redelivery of the property. The decree-holder opposed that petition and contended that it was unsustainable and entirely lacking in good faith. It was also contended that the person seeking re-delivery is only a representative-in-interest of the 9th defendant in O.S. 300 of 1101 and as such he is concluded by the orders passed in that case. The executing court overruled these objections and held that M.P. 2398 is sustainable. It is this order that is sought to be revised. 2. Before proceeding to consider the points raised in this Revision Petition, it is necessary to state how the contending parties trace their claim to the possession of the property in dispute, ie. 34 cents of property comprised in Survey No. 1246 of Vaduthala Desom. As already stated, the decree and the execution proceedings in O.S. 300 of 1101 are all in favour of the decree-holder who is the revision petitioner. One Kotheril Achutha Menon had obtained possession of this property under as Adimachirthu granted to him from the Cherupalli Swaroopam. While he was thus in possession of the property, he granted a usufructuary mortgage in respect of this property, as well as other properties in favour of one Vareeth about the year 1080. Subsequently Achutha Menon's rights devolved on the plaintiff in O.S. 300 of 1101 and accordingly the plaintiff instituted that suit for redeeming the mortgage. While he was thus in possession of the property, he granted a usufructuary mortgage in respect of this property, as well as other properties in favour of one Vareeth about the year 1080. Subsequently Achutha Menon's rights devolved on the plaintiff in O.S. 300 of 1101 and accordingly the plaintiff instituted that suit for redeeming the mortgage. The 1st defendant's son was also impleaded as the 9th defendant in the suit as a person in enjoyment of the property under the 1st defendant. The trial court's decree for redemption passed in the year 1101 was confirmed by the High Court in the year 1105. When the decree-holder attempted to get possession of the property by executing the decree, the 9th defendant and others raised a contention that the 34 cents of property covered by Survey No. 1246 was Poramboke land at the absolute disposal of the Government and that it was assigned in favour of the Cherupalli Swaroopam in the year 1095 and that this property was not included in the mortgage relied on by the decree-holder. That dispute was finally set at rest by the decision of the Cochin High Court in S.A. 46 of 1122. That decision is to the effect that property is dispute was also included in the mortgage which formed the basis of the decree in O.S. 300 of 1101 and that the decree-holder was entitled to recover possession of the same in execution of the decree. It was on the strength of that decision that he was put in possession of the property through court on 3.10.1123. In the meantime, the 9th defendant in the case executed a lease deed in respect of the sale property in the year 1109 in favour of the Cherupalli Swaroopam. On the strength of that lease deed, the Swaroopam sued the lessee for arrears of pattom and obtained the decree in O.S. 40 of 1122 of the Ernakulam Munsiff's Court. In execution of that decree, the lease hold right of the defendant was sold in court auction and it was purchased on one Varkkey Augustine, who obtained possession of the property on 2.2.1123. The petitioner in M.P. 2398 of 1123 claims to have obtained an assignment of the rights of this Varkkey Augustine and to have obtained possession of the property from him on 26.9.1123. 3. The petitioner in M.P. 2398 of 1123 claims to have obtained an assignment of the rights of this Varkkey Augustine and to have obtained possession of the property from him on 26.9.1123. 3. The two points urged on behalf of the revision petitioner are that the petitioner in M.P. 2398 is only a representative in interest of the 9th defendant in O.S. 300 of 1101 and that all the proceedings under which he claims to have obtained possession of the property are vitiated by the rule of lis pendens. The case of the petitioner in M.P. 2398 is that on the date of his dispossession by the decree-holder in O.S. 300 of 1101, he was in possession of the property on his own account and not on account of or under the judgment-debtors in that case. It is on the strength of such a plea that he has complained about his dispossession and has applied under 0. 21, R. 97 of the Cochin Civil Procedure Code for restoring his possession of the property. If the executing court is satisfied that he was in possession of the property on his own account or on account of some person other than the judgment-debtors, it is bound to restore his possession of the property under 0. 21, R. 98. Thus, the essential conditions to be established by the petitioner in M.P. 2398 are that he was in possession of the property in his own account and not on account of any of the judgment-debtors in O.S. 300 of 1101 and that his claim for possession of the property is supported by good faith. As already pointed out, it is the lease hold right which the 9th defendant in O.S. 300 of 1101 is stated to have acquired in the year 1109 and which was sold in court auction as per the decree in O.S. 40 of 1122 that is relied on by the petitioner in M.P. 2398 as the basis of his claim for possession of the property. Long before the 9th defendant assumed the position as a lessee, of the property in the year 1109, the present revision petitioner had instituted O.S. 300 of 1101 with the 9th defendant also on the party array, for recovery of possession of the very same property, on redemption of the mortgage which the 1st defendant, who was the father of the 9th defendant, had executed in favour of the predecessor-ininterest of the plaintiff. The contention put forward in that case that 9th defendant's possession of the property was under the defendant-mortgagee, was upheld by the court and a decree for redemption of the property was passed. The 9th defendant is undoubtedly concluded by that decree. His attempt in resisting delivery of the property in favour of the decree-holder also failed when it was decided in S.A. 46 of 1122 that this property was also included in the mortgage and that the decree-holder was entitled to recover possession of the same. It was long after the decree for redemption had become final that the 9th defendant executed the lease deed in favour of Cherupalli Swaroopam in respect of the same property in the year 1109. At that time he was bound in law as the judgment-debtor in O.S. 300 of 1101, to surrender possession of the property to the decree-holder. By executing the lease deed in favour of the Cherupalli Swaroopam, the 9th defendant was virtually transferring possession of the property to the Swaroopam and accepting it back as a lessee under the Swaroopam. The circumstances under which such a transaction was entered into early indicate that it was devoid of all good faith and that it was only an attempt to defeat the decree-holder in O.S. 300 of 1101. The possession with the Cherupalli Swaroopam claimed on the strength of the lease deed executed by the 9th defendant, could only be the possession obtained from the judgment-debtor in O.S. 300 of 1101. By executing the lease deed, the legal character of the 9th defendant's position as the judgment-debtor in that case could not be altered. His lease hold right in reality and substance was nothing other than his right to the possession of the property as the judgment-debtor. It was the right to such possession that was sold in court auction in O.S. 40 of 1122 and purchased by Varkkey Augustine and subsequently transferred to the petitioner in M.P. 2398. His lease hold right in reality and substance was nothing other than his right to the possession of the property as the judgment-debtor. It was the right to such possession that was sold in court auction in O.S. 40 of 1122 and purchased by Varkkey Augustine and subsequently transferred to the petitioner in M.P. 2398. Thus the possession claimed by him is essentially the possession of the 9th defendant judgment-debtor in O.S 300 of 1101. It follows, therefore, that he was really the representative in interest of the 9th defendant and was in possession of the property not on his own account, but only on account of the 9th defendant when the decree-holder in O.S. 300 of 1101 recovered possession of the property from him on 3.10.1123 and that he is not entitled to claim for its restoration of his possession under 0. 21, R. 97. 4. The rule of lis pendens also stands against the petitioner in M.P. 2398 in respect of his claim to the possession of the property in dispute. The right to the possession of the property in question was directly and specifically raised in O.S. 300 as early as in the year 1101 and the decree in that case directed that the plaintiff should be put in possession of the property. The petitioner in M.P. 2398 is stated to have obtained possession at a time when the decree in O.S. 300 of 1101 was in force. Such a transfer was brought about as a result of the 9th defendant's dealing with the property as a lessee under Cherupalli Swaroopam. The transfer brought about in favour of the petitioner in M.P. 2398 under such circumstances clearly comes within the mischief of the doctrine of lis pendens. The lower court appeared to have proceeded on the basis that the 9th defendant was not made a party to O.S 300 of 1101 at the time of the institution of the suit, but was only impleaded in execution as the legal representative of the first defendant. But, as a matter of fact, the 9th defendant was impleaded as a party to the suit even at its commencement and this fact is conceded on behalf of the petitioner in M.P. 2398 also. It cannot also be said that the operation of the rule of lis pendens is restricted to voluntary transfers. But, as a matter of fact, the 9th defendant was impleaded as a party to the suit even at its commencement and this fact is conceded on behalf of the petitioner in M.P. 2398 also. It cannot also be said that the operation of the rule of lis pendens is restricted to voluntary transfers. It is now settled law that involuntary transfers effected through the aid of court are also affected by the rule of lis pendens. We do not think it necessary to refer to the numerous decisions in support of this position. It is sufficient to point out that the decision of the Privy Council in Motilal v. Karabuldin (ILR 25 Cal. 179) is definitely in favour of the position that involuntary transfers under the process of court are affected by the rule of lis pendens. No doubt the rule of lis pendens as enunciated in S. 52 of the Transfer of Property Act cannot apply with all its implications to proceedings under R. 96 to 99 of the 0. 21, Cochin Civil Procedure Code, where the question of title to the property does not arise for consideration, but only the right to the possession of the property has to be determined. All the same it is clear from 0. 21, R. 99 of the Cochin Civil Procedure Code (corresponding to 0. 21, R. 102 of the Indian in Code) that the right to possession agitating in execution proceedings has to be determined subject to the rule of lis pendens. 0. 21, R. 99 lays down that "nothing in R. 96 and 98 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person". There is no reason to limit the application of this rule to the voluntary transfer of possession the judgment-debtor. The transfer of possession by him may be voluntary or involuntary. The emphasis laid by 0. 21, R. 99 is upon the stage at which the transfer of possession is affected and not upon the manner in which such transfer is effected. The transfer of possession by him may be voluntary or involuntary. The emphasis laid by 0. 21, R. 99 is upon the stage at which the transfer of possession is affected and not upon the manner in which such transfer is effected. It is obvious that the object on the rule is to prevent the successful and effective execution of the decree for the possession of the property involved in the suit being defeated by any act of the judgment-debtor subsequent to the institution of the suit, which might result in an intermediate transfer of possession of the property to a third party. In this view of the matter, there can be no justification for putting a narrow construction on the expressions used in R. 99. The transfer contemplated by the rule need not necessarily be by the judgment-debtor direct to the third party complaining of the dispossession by the decree-holder. Any transfer of possession by the judgment-debtor directly or at his instance or for which he has been responsible would come within the scope of R.99. It were otherwise, the object of the rule could be very easily defeated by the judgement-debtor by resorting to successive transfers as in the present instance. Even though the petitioner in M.P. 2398 claims to have obtained possession of the property from the auction purchaser in O.S. 40 of 1122, it is clear that such possession takes it origin from the transfer of possession affected by the 9th defendant in O.S. 300 of 1101 when he executed the lease deed in the year 1109 in favour of the Cherupalli Swaroopam. Thus the initial transfer of possession of the property was by the judgment-debtor in O.S. 300 of 1101 and it was on the strength of such transfer that the subsequent involuntary transfer through court by the execution of the decree in O.S. 40 of 1122 was effected. The rule of lis pendens adopted in 0. 21, R.99 applies to such an involuntary transfer also. It follows, therefore, that the possession obtained by the petitioner in M.P. 2398 in the manner already stated could not be put forward as a shield against the claim of the decree-holder in O.S. 300 of 1101 for recovery of possession of the properly and that the executing curt was only acting property and legally in putting the decree-holder, in possession of the property. The complaint under 0. The complaint under 0. 21, R. 97 against such dispossession of the petitioner in M.P. 2398 is clearly unsustainable in view of the provision contained in 0. 21, R. 99. The rulings in Kanakasabai Mudaliar v. Rajagopal Naidu (XLII Indian Cases, page 523) and in Bopin Chandra Gorain v Hom Chandra Mukherjee (AIR 1939 Cal. 709) are also in support of this view. 5. In the result we uphold the objections urged against the sustainability of M.P. 2398 of 1123. Accordingly, this revision petition is allowed with costs and in reversal of the order of the lower court, M.P. 2398 of 1123 is dismissed. Petition allowed.