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1951 DIGILAW 103 (KER)

Gopalan Nair v. Bharathi Amma

1951-09-04

GANGADHARA MENON, VITHAYATHIL

body1951
Judgment :- 1. The 2nd plaintiff in O.S. No. 51/1104 of the Quilon District Court is the appellant in this case. The appeal is from an order in execution. The suit was for partition. When the plaintiffs applied for delivery of possession of the properties allotted to their share in the final decree the present respondent put in an obstruction petition in respect of 20 cents in the decree schedule C item No. 20. It was contended that this plot was sold in revenue auction on 10.8.1109 for arrears of Sirkar Tax and was purchased by the 70th defendant in the case who sold it to the obstructor on 11.10.1110. The lower court allowed the obstruction petition and the appeal is filed from that order. 2. The suit was filed in 1104 and the preliminary decree was passed on 27.1.1110 and the final decree on 27.5.1110. The revenue auction was on 10.8.1109 i.e., before the date of the preliminary decree. The points urged in this appeal by the learned advocate for the appellant are the following. (1) The revenue sale is affected by lis pendens; (2) the 70th defendant who was the revenue auction purchaser was bound to put forward his claim in respect of the property in the suit itself and that therefore the present plea of his assignee is barred by res judicata and (3) the execution court is not competent to go behind the decree which awards the disputed plot to the plaintiffs. 3. With regard to the first point the learned advocate for the appellant relies on a ruling of the Travancore High Court reported in 1949 T.L.R. 36 (Janaki Amma v. The Dewan of Travancore). That was a suit instituted to set aside a revenue sale on the ground that it was vitiated by material irregularities. The revenue sale took place during the pendency of a suit for partition. It was held in that case that the karnavan of the tarwad was not a party to the revenue proceedings and that the sale was therefore invalid and not binding on the tarwad. It was also held that the revenue sale was vitiated by lis pendens. This question came up for consideration in a later case reported in 1950 KLT 322 (Krishna Kartha v. Kumaraswami Namboothiripad). In that case Mr. It was also held that the revenue sale was vitiated by lis pendens. This question came up for consideration in a later case reported in 1950 KLT 322 (Krishna Kartha v. Kumaraswami Namboothiripad). In that case Mr. Justice Govinda Pillai observed thus: "The observation thus made in 1949 T.L.R. would therefore indicate that the revenue sale is vitiated by lis pendens and that it 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 these charges had merged in a decree of court or not. Otherwise there would be no meaning for the provisions in S.2 and 39 of Act 1 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 T.L.R. 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. We do not think that the fact that there was a suit for partition pending when the property was sold for arrears of tax will in any way affect the validity of the revenue sale. The result of holding otherwise would be that the Government would not be entitled to proceed against a property forming the subject matter of a suit for arrears of tax due thereon. Reference may be made in this connection to a decision of the Madras High Court reported in AIR 1939 Mad. 256 (Ponnuswami Chettiar v. Ellasari Obul Reddy). That was a case in which the revenue sale took place before the date of the final decree in a mortgage suit. His Lordship Wadsworth, J. observed thus in that case: "It is well established that such a sale for arrears of land revenue is not affected by lis pendens: Vide 37 Madras 49 and the observations in 26 Madras 230 at 236. His Lordship Wadsworth, J. observed thus in that case: "It is well established that such a sale for arrears of land revenue is not affected by lis pendens: Vide 37 Madras 49 and the observations in 26 Madras 230 at 236. I have no hesitation in holding that the sale by the Collector for arrears of rent of the land on which those arrears were due to the landholder is not affected by a pending suit on a mortgage executed by the ryot who is in default." To the same effect is the ruling in 1929 Rangoon 175 (Abdur Rauf Chowdry v. N.P.L. S.P. Chettiar Firm). In that case the mortgagee who had given no notice of his mortgage to the Municipal Corporation filed a suit on his mortgage. In the meanwhile the property was sold under Burma Land and Revenue Act S. 47 by the Corporation after due notice to the mortgagor for arrears of property tax. It was held that the property was sold free from the mortgage. Their Lordships observed thus in that case:- "The learned trial judge bases his judgment in the main on the doctrine of lis pendens. We do not consider that the doctrine applies to this case at all. It would indeed be a dangerous extension of the doctrine to hold that neither Government nor a local body could recover its taxes or rates from a defaulter so long as a law suit was pending between the defaulter and some of his other creditors". We have no doubt that the principle underlying S.52 of the Transfer of Property Act relating to lis pendens does not apply to cases of revenue sale for arrears of tax due on a property. 5. The second point for consideration is whether the claim is barred by res judicata. The 70th defendant who was a proforma party in the case purchased the property in revenue auction on 10.8.1109. The suit was as stated above instituted in the year 1104: At the time of the institution of the suit the 70th defendant had no claim to put forward in respect of the plot in dispute. He could not therefore raise this plea at that time. The question for consideration is whether the defendant in a suit is bound to put forward a plea on the basis of a cause of action which arises during the pendency of the suit. He could not therefore raise this plea at that time. The question for consideration is whether the defendant in a suit is bound to put forward a plea on the basis of a cause of action which arises during the pendency of the suit. This question was considered by a Full Bench of the Madras High Court in AIR 1949 Mad. 586 (Sita Amma v. Kotareddi). It was held in that case that when a right accrues to a party in respect of the subject matter of a suit after the institution of the suit he is not bound to rely on that right in that suit. Following the decision in 3 B.H.C. R. 207 (Arichandran Deo Caru v. Ramanna Chandri) Their Lordships observed thus in that case: "It has been a well recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit or afterwards can bring another suit on the fresh cause of action". If a party who acquires a fresh right during the pendency of the suit wants to claim a relief in the suit on the basis of that right he will have to seek an amendment of the pleading and the court is not bound to allow the amendment. Therefore it cannot be said that a party is bound in law to put forward a claim in a suit on the basis of a right acquired by him during the pendency of the suit. We are therefore of opinion that the claim based on the revenue sale was not one which the 70th defendant was bound to put forward in the suit. The plea of his assignee cannot therefore be said to be barred by res judicata. 6. With regard to the third point, namely whether the court executing the decree is competent to go behind the decree, we are of opinion that so long as the claim is not barred by res judicata the court is competent to go into the question under S.47 C.P.C. If a party to the decree can file a fresh suit on the basis of a right acquired by him during the pendency of the suit the court executing the decree can treat a proceeding under S.47 as a suit and grant appropriate relief to the party. The lower court was therefore competent to consider the claim put forward by the assignee of the 70th defendant and grant him appropriate relief. 7. For the above reasons we confirm the order of the lower court and dismiss this appeal with costs. Dismissed.