Arunachalam Vanamoorthi Konar v. Geevarghese — 1963 DIGILAW 385 (KER)

JUDGMENT K.K. Mathew, J. 1. 1st defendant is the appellant. The appeal is from a decree in a suit for redemption of the plaint schedule property. That property belonged to the 3rd defendant. In the year 1098 he executed a hypothecation bond of that and other properties to the erstwhile Government of Travancore as security for an agricultural loan. In 1099 the 3rd defendant and his wife the 4th defendant executed a hypothecation bond to the Travancore National Bank Ltd., hereinafter called the Bank, of the plaint and other properties. On the basis of the hypothecation bond in favour of the Bank, the Bank instituted a suit O. S. 42/1103, obtained a decree and brought one property included in the hypotheca to sale and purchased it. In the year 1107 the Government of Travancore proceeded to realise the amount due to them under the agricultural loan. At that time, the Bank stepped in and paid off the amount due to the Government. Thereafter, for realising the amount thus paid off by the Bank to the Government it filed O. S. 145/1107 against the owner of the properties. A decree was passed in that case and in execution of the decree the Bank purchased the plaint schedule property on 14-7-1112, and got delivery of possession of it in the year 1115. In the meanwhile the Bank had gone into liquidation and the liquidator sold the properties to a third party in the year 1117 under Ext. V and the 1st defendant got a sale of that right from the third party under Ext. VI. -- Before the Bank filed the suit in O. S. 145/1107 the 2nd defendant had filed a suit and obtained a money decree against the 3rd defendant in O. S. 405/1099. In execution of that decree he had brought the plaint schedule property to sale on 7-1-1105, and purchased it. The sale was confirmed on 5-2-1105. He got delivery of possession of the property under Ext. F and the building thereon under Ext. F1 dated 25-5-1108 and 16-2-1108 respectively, and sold his rights in the property to the plaintiff in 1124. When the Bank sought delivery of possession in execution of O. S. 145/1107 the 2nd defendant put in an obstruction petition before the Amin who came to effect the delivery. F and the building thereon under Ext. F1 dated 25-5-1108 and 16-2-1108 respectively, and sold his rights in the property to the plaintiff in 1124. When the Bank sought delivery of possession in execution of O. S. 145/1107 the 2nd defendant put in an obstruction petition before the Amin who came to effect the delivery. The main reported the fact of obstruction to the court and thereafter the Bank filed an application Ext. K for removal of the obstruction. Ext. G is the execution diary in O. S. 145/1107 and Ext. H is the obstruction petition put in by the 2nd defendant. From Ext. G it is clear that the court passed an order dismissing the obstruction petition and allowing delivery of possession of the property, and as I have already said, that delivery was effected in the year 1115. It would appear that the obstructor did not contest the case and allowed the order to be passed ex parte. The present suit has been filed by the plaintiff for redemption of the admitted charge on the property. The plaintiff averred that the 2nd defendant had become the owner of the property at the time when O. S. 145/1107 was filed and as he was not impleaded in that suit as the owner of the equity of redemption, the decree in O. S. 145/1107 was not binding on him and therefore the plaintiff, who succeeded to his rights was entitled to redeem the properly and to recover possession thereof. 2. The 1st defendant contended that the execution proceedings in O. S. 405/ 1099 were vitiated by fraud and collusion, that as a matter of fact there was no delivery of the property to the 2nd defendant in 1108 and that Exts. F and F1 cannot be acted upon for finding that there was delivery of possession. 2. The 1st defendant contended that the execution proceedings in O. S. 405/ 1099 were vitiated by fraud and collusion, that as a matter of fact there was no delivery of the property to the 2nd defendant in 1108 and that Exts. F and F1 cannot be acted upon for finding that there was delivery of possession. He also contended that the suit was barred by limitation in as much as the 2nd defendant did not obtain possession of the property after the court purchase and as more than 12 years have elapsed from that date, his right to the equity of redemption was lost by adverse possession and as the charge in favour of the Government and of the Bank were merely hypothecation rights, the property was in the possession of the 2nd defendant and thereafter of the Bank and the suit not having been instituted within 12 years of date of the confirmation of the sale was barred by limitation. 3. The trial court found that the plaintiff was not entitled to redeem on the ground that the suit was barred by limitation. The reason why it held so was that the 2nd defendant had to sue for possession within 12 years from the date of the confirmation of the court sale, and as he had not instituted such a suit his right to the property became extinguished by lapse of time. The Court also found that Exts. F and F1 could not be relied upon as conclusive of the question of delivery of the properly to the 2nd defendant, and that the other evidence in the case showed that as a matter of fact no delivery took place. In appeal by the plaintiff the lower appellate court reversed that decree holding that there was no bar of limitation for the suit and that Exts. F and F1 evidenced real delivery of the property to the 2nd defendant. 4. The main contention raised in this appeal was that the suit was barred by limitation and that there was no delivery of the plaint property to the 2nd defendant in the year 1108 as evidenced by Exts. F. and F1. On the question of limitation counsel put forward a twofold argument. 4. The main contention raised in this appeal was that the suit was barred by limitation and that there was no delivery of the plaint property to the 2nd defendant in the year 1108 as evidenced by Exts. F. and F1. On the question of limitation counsel put forward a twofold argument. In the first place he submitted that the 2nd defendant not having filed a suit within 12 years from the date of the confirmation of the court sale, for recovery of possession of the property, his right to recover the property got barred under Article 126 of the Travancore Limitation Act which reads as follows: Like suit by a purchaser at a sale in execution of a decree, when the judgment debtor was in possession at the date of the sale. Twelve years The date when the sale becomes absolute. � In this case it is admitted that the 3rd defendant was in possession of the property on the date of the purchase in court auction by the 2nd defendant and therefore it was urged that the suit not having been filed within 12 years the equity of redemption became lost to him under S.28 of the Limitation Act. 5. His second contention was that the order disallowing the obstruction and the failure of the 2nd defendant to institute a suit to set aside that order under O.21 R.103 of the Civil procedure Code, within a period of one year from the date thereof precluded the 2nd defendant or his representative from contending that he had a title to the property or at any rate a right to the present possession thereof. 6. So far as the first contention is concerned it may be recalled that the 2nd defendant's case was that he obtained delivery of possession of the property under Exts. F and F1. The finding of the lower appellate court is to the effect that possession was so obtained. The fact that the building in the plaint schedule property was given delivery of separately under Ext.F1 and the fact that the movables kept in that building were produced in court as evidenced by Ext. G the execution diary in O. S. 145/1107 would indicate that there was real delivery of the property in 1108. The argument advanced by counsel that there was no delivery is not convincing. G the execution diary in O. S. 145/1107 would indicate that there was real delivery of the property in 1108. The argument advanced by counsel that there was no delivery is not convincing. Although he attempted to show that there was collusion between the 3rd defendant and the 2nd defendant in the matter of delivery I am not satisfied that there is any basis for that contention in the evidence in the case. The trial court came to the conclusion that the delivery was sham because it was of opinion that the 2nd defendant if he had possession of the property would have obstructed delivery of possession to the Bank in execution of the decree in O. S. 145/1107. That was a patent error which the learned Munsiff committed. The 2nd defendant did obstruct delivery. There is some suspicion on account of the fact that the 2nd defendant transferred one item of the property purchased by him in execution of the decree in O. S. 405/1099 to a near relative of the 3rd respondent for Rs. 100/- under Ext. IX, on 19-11-1118; and that that sale was for 8 acres and 14 cents of land. But that by itself is not sufficient to rebut the presumption of delivery arising front Exts. F and FL So I come to the conclusion that the plaint schedule property was delivered to the 2nd defendant in the year 1108 under Exts. F and F1 and that he remained in possession of the property till he was dispossessed in execution of the decree in O. S. 145 of 1107 in 1115 and the suit having been instituted within 12 years from that date was not barred. Therefore the first argument of the 1st defendant has no substance in it. 7. As regards the second line of argument viz. that because the 2nd defendant did not file a suit to set aside the adverse order on the obstruction petition filed by him, and therefore he was precluded from filing this suit, I may at once say that that point was not relied on in either of the courts below. The order overruling the obstruction also was not produced in the case. But we can make out the gist of the order from Ext. G the execution diary. The order overruling the obstruction also was not produced in the case. But we can make out the gist of the order from Ext. G the execution diary. It can be seen therefrom that the 2nd defendant did not contest the matter and that the obstruction petition was dismissed, The substance of the argument of counsel was that the 2nd defendant, not having filed a suit to set aside the adverse order passed against him on the obstruction petition, was precluded from putting forward his title to the property for redeeming the mortgage. In other words, it was submitted that the effect of the adverse order on the obstruction petition was that the plaintiff was precluded from relying upon his title to the property for maintaining the suit for redemption. O.21 R.103, of the Civil Procedure Code precludes a party against whom an adverse order on an obstruction petition has been passed from agitating the question of the present right to possession of the property if no suit has been filed to set aside that order; but it does not prevent a defeated obstructor from instituting a suit on some other basis. There are a number of decisions holding that the fact that an adverse order has not been set aside under O.21 R.103 does not prevent the defeated obstructor from claiming relief on some other title. 8. Counsel for the appellant placed reliance upon the rulings reported in AIR 1953 T.C. 455 and AIR 1946 Madras 76, for the purpose of showing that the effect of an adverse order on an obstruction petition is to preclude the defeated obstructor from agitating his present right to possession. Giving due weight to those rulings what they preclude the defeated party from doing is to agitate and establish his right to the present possession of the property. Here, what the plaintiff has got to prove is that he has a title to the property in order to redeem the admitted charges on it. It appears to me to be clear that the title of the plaintiff to the property was not extinguished under S.28 of the Limitation Act by the failure to institute the suit to set aside the order on the obstruction petition. A suit under O.21 R.103 is not a suit for recovery of possession of the property. It appears to me to be clear that the title of the plaintiff to the property was not extinguished under S.28 of the Limitation Act by the failure to institute the suit to set aside the order on the obstruction petition. A suit under O.21 R.103 is not a suit for recovery of possession of the property. It is only a suit to establish the right to the present possession of the property and S.28 of the Limitation Act will not be attracted to such a case. What S.28 postulates is that if a party entitled to institute a suit for recovery of possession fails to do so within the time prescribed for that purpose in the Limitation Act the title of such party will be extinguished. Since the suit contemplated under O.21 R.103 is not a suit for recovery of possession, the failure to bring such a suit cannot operate to extinguish the title to the property under S.28 of the Limitation Act. This question came up for consideration in Gobardhan v. Sukhamoy (AIR 1951 Calcutta 481) and the learned Judges came to the conclusion that S.28 will not operate to extinguish the title of the defeated obstructor by his failure to institute a suit within the period prescribed therefor, the reason being that a suit under O.21 R.103 is not a suit for recovery of possession of the property. At page 486 their Lordships said: "A civil proceeding instituted under the provisions of that rule is a suit, for that word is used in the rule itself, but the question is - is the suit contemplated in that rule a suit for possession? So far as we are aware, there are no decided cases on the point, and therefore the question has to be considered by considering the provisions not only of that rule but also of R.97, 98 and 99 of O. 21, as also of other rules in that Order; ................" As I agree with the reasoning of the learned Judges, I am extracting that portion of the judgment in which they deal with this question. It is at page 486, and it is as follows: " We will first take the case of an order passed under O.21 R.99. It is at page 486, and it is as follows: " We will first take the case of an order passed under O.21 R.99. This order as well as an order which is contemplated by R.98, are to be in proceedings started under O.21 R.97, that is to say, (1) proceedings started by the decree holder who has obtained a decree for possession and who is obstructed when he goes to take delivery of possession of the property, or (2) by an auction purchaser of a property at a court sale in execution of a money decree or a decree which is to be realised by recourse to sale of property. Those proceedings started by the decree holder has to proceed in the presence of the party who has so obstructed. In substance the order under R.99 would be an order of dismissal of the application made by the decree holder under O.21 R.97, that is to say, the effect of the order is that he cannot take possession through the writ for possession which had been issued by the executing court at his instance. The suit which is contemplated by R.103 is a suit in which he has to pray that he has the right to present possession, that is to say that he had the right to take possession at the relevant time, namely, when the writ for possession was issued at his instance by the executing court. On the language of R.103 he has not to make any oilier prayer. If he fails in the suit, the matter ends here. The writ which was issued at his instance remains a dead writ. If he succeeds, that is to say, he establishes his claim to the present possession of the property as against the defendant who had resisted the execution of the writ for possession, he would take possession of the property by the execution of that very writ on the basis of which possession could not be delivered before by the executing court by reason of the obstruction at that time by the defendant. So to say, during the interval between the order passed under O.21 R.99 and the decree which is passed in favour of the decree holder or the auction purchaser, as the case may be, in the suit under O.21 R.103 the writ was in a state of suspended animation. So to say, during the interval between the order passed under O.21 R.99 and the decree which is passed in favour of the decree holder or the auction purchaser, as the case may be, in the suit under O.21 R.103 the writ was in a state of suspended animation. The result of the suit one way or the other would give it full life, if we may use a figurative expression or put an end to its life." If that is so, there is no substance in the contention of counsel for the appellant that the suit was not maintainable, as the plaintiff had not title to the property. Counsel also attempted to show that the present right to possession which the plaintiff claimed in the suit cannot be granted as he was precluded by the order on the obstruction petition from claiming it. I think that the prayer for recovery of possession of the property is a relief which the plaintiff seeks not because the 2nd defendant was dispossessed wrongfully, but because it is consequential to redemption of the property. The 1st defendant cannot put forward any right to remain in possession of the property as the plaintiff is the admitted owner and is not bound by the decree, under which alone the 1st defendant obtained possession. As that decree is being paid off in this action the right of the plaintiff to possession arises as consequential to and ancillary to his right of property. I think that as the decree under which the Bank obtained possession was not binding on the 2nd defendant or his representative the plaintiff, the plaintiff is entitled to pay off that decree and recover possession, so long as the title to the property was not lost, and I think that in this case title of the plaintiff was not lost, although the second defendant did not file the suit to set aside the order on the obstruction petition within one year thereof. Therefore I hold that the conclusion of the lower appellate court was correct and that it has to be upheld. 9. In the result, the decree of the lower appellate court is confirmed and the appeal dismissed with costs.