R. Ranganatha Naidu v. R. Subramaniya Mudaliar — 1998 DIGILAW 20 (MAD)

Judgment : Defendant in O.S.No.304 of 1975 on the file of District Munsif, Tiruvallur is the appellant in the above second appeal. The plaintiff/respondent herein filed the said suit for declaration and for recovery of possession. The trial court dismissed the suit and in the appeal, at the instance of the plaintiff, the lower appellate court allowed the appeal and decreed the suit as prayed for. Aggrieved by the judgment and decree of the lower appellate court in A.S.No.65 of 1982 the defendant has filed the present second appeal. 2. The case of the plaintiff/respondent herein is briefly stated here under: He filed the said suit for declaration and possession by saying that he purchased the suit properties in court auction and took possession of the same with standing crops on 22. 1975. It is also contended that on 22. 1975, since the lands under dispute were under the possession of the de-, fendant, symbolic delivery was effected. Since the defendant was disputing the title of the plaintiff, the plaintiff has filed the said suit. The defendant/ appellant herein filed a written statement wherein it is contended that he purchased the suit property for valuable consideration under two registered sale deeds dated 2. 1972 and 2. 1973. It is also contended that he had purchased the same without knowing the litigation between the vendors and the plaintiff and the plaintiff was never put in possession of the property. The plaintiff purchased the suit properly in court auction in suspicious circumstances and the suit was not maintainable in view of O.21, Rule 90 read with Sec.47 of the Code of Civil Procedure. The plaintiff himself was examined as P.W.I and Exs.A-1 to A-12 were marked in support of his claim. Likewise, the defendant was examined as D.W.I and he also marked Exs.B-1 to B-10. The learned District Munsif, in the light of the above pleadings after framing necessary issues and on the basis of the oral and documentary evidence, in view of Sec.47, C.P.C., by judgment and decree dated 24. 1982 dismissed the suit. Aggrieved by the said dismissal, the unsuccessful plaintiff had filed an appeal in A.S.No.65 of 1982. The learned District Munsif, in the light of the above pleadings after framing necessary issues and on the basis of the oral and documentary evidence, in view of Sec.47, C.P.C., by judgment and decree dated 24. 1982 dismissed the suit. Aggrieved by the said dismissal, the unsuccessful plaintiff had filed an appeal in A.S.No.65 of 1982. The learned Subordinate Judge, Tiruvallur after framing necessary points for consideration disagreeing the view expressed by the trial court, allowed the appeal and set aside the judgment and decree of the learned District Munsif and also granted decree in favour of the plaintiff as prayed for. Challenging the judgment and decree of the lower appellate court, the defendant, has filed the present second appeal. While entertaining the second appeal, this Court has framed the following substantial questions of law for consideration: (1) Whether the suit is maintainable? (2) Whether the suit is not barred by Sec.47 of the Code of Civil Procedure? (3) Whether by consent there could be an attachment in execution where there was no decree for execution? (4) Whether the legal fiction enacted under O.21, Rule 55 of Code can be altered by an agreement between the parties? 3. I have heard Mr.T.P.Sankaran, learned counsel for the appellant and Mr.M.V.Krishnan, learned counsel for the respondent. 4. The learned counsel for the appellant after taking me through the earlier litigation in the light of Sec.47, C.P.C., contended that the plaintiff has to approach the court in which decree has been granted and work out his remedy under the said section. According to him, the trial court has correctly dismissed the suit and the lower appellate court committed an error in decreeing the suit. On the other hand, the learned counsel for the respondent submitted that the present claim of the appellant has nothing to do with the earlier court auction proceedings and in view of the denial and disturbance by the defendant, it is always open to the plaintiff to file an appropriate suit; hence Sec.47, C.P.C., has no application in this case, accordingly he prayed for dismissal of the second appeal. I have carefully considered the rival submissions. 5. There is no dispute that the suit properties originally belonged to one Govinda Chetty. Since Govinda Chetty owed some amount to the plaintiff, he filed a suit in O.S.No. 11 of 1963. The suit was decreed. I have carefully considered the rival submissions. 5. There is no dispute that the suit properties originally belonged to one Govinda Chetty. Since Govinda Chetty owed some amount to the plaintiff, he filed a suit in O.S.No. 11 of 1963. The suit was decreed. The suit properties among other properties were attached in E.P.No.148 of 1967 on the file of District Munsif, Tiruvallur. After the attachment, Govinda Chetty, the judgment-debtor exchanged the suit properties with his son Ramu Chetty i.e., 13 days after the copy of the exchange deed. The defendant purchased a portion of the property under Ex.B-1, dated 2. 1972. The remaining portion of the suit property was purchased by the defendant from the son, namely, Ramu Chetty under Ex.B-2. In the meantime the plaintiff after attachment brought the properties for sale and purchased the same in the court auction with the permission of the court. After the completion of the court auction, the plaintiff took delivery of the properties on 24.2:1975. Ex.A-1 is the sale certificate issued in favour of the plaintiff. Ex.A-2 is the delivery receipt. In the light of the above factual position, the plaintiff has filed the present suit for declaration as well as delivery of possession from the defendant. 6. In the light of the points raised in the present appeal, I may straight away refer Sec.47, C.P.C., which reads thus; "47. Questions to be determined by the court executing decree: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. (2)****** (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the court. Explanation I: For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation I: For the purpose of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed, and; (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." Sec.47(l) makes it clear that all questions between the parties to the suit with regard to execution, discharge or satisfaction of the decree have to be decided by the court executing the decree and not by a separate suit. Explanations I and II were inserted by Amendment Act, 1976. Explanation II(b) makes the position clear that all the questions relating to the delivery of possession of the property to a purchaser or his representative shall be deemed to be a question relating to the execution, discharge or satisfaction of the decree within the meaning of Sec.47. The learned trial Judge after holding that defendant is not a bona fide purchaser, in view of the fact that the matter goes to the root of "delivery of possession" at the instance of the purchaser in a court auction sale by applying Sec.47 non-suited the plaintiff with a direction to approach and work out his remedies as per the section. 7. In Hamandraj v. Debidutt. A.I.R. 1973 S.C. 2423, the applicability of Sec.47, C.P.C., was considered by their Lordships. The following conclusion by their Lordships in that decision is relevant: "Sec.47 in our view should be construed liberally. As far back in (1892)19 I.A. 166 (PC), the Privy Council spoke strongly in favour of putting a liberal construction on Sec.244 of the Code of Civil Procedure of 1882 which corresponded to present Sec.47 of the Code of 1908. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 LA. 54: A.I.R. 1917 PC. 121. If a liberal construction be put up on Sec.47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. The Privy Council reiterated this in Ganapathy v. Krishnamachariar, 45 LA. 54: A.I.R. 1917 PC. 121. If a liberal construction be put up on Sec.47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all a decree-holder purchases the property in execution of his decree with the permission of the court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment-debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment-debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit." 8. According to the plaintiff, the suit property was handed over to him symbolically on 22. 1975. He has filed the present suit for declaration of his title and also for recovery of possession from the defendant on 111. 1975. Ex.A-2 is the delivery receipt. In that the plaintiff in so many words has accepted that he had taken delivery through court Amin. In two places he made it clear that he had taken possession of the suit properties through court Amin. Having made it clear that he had taken possession under Ex.A-2, in Ex.A-3, which is a legal notice dated 24. 1975, it is mentioned that "You have combined and conspired to defraud our client and so you have cut and carried away the crops in about 12 acres of land. There are 4 acres of land still to be harvested. The crops you have taken away is about 100 bags of paddy. The first of you and the rest of you claiming under the 1st of you are all bound by the court proceedings ending in delivery of the lands to abide by the court proceedings including the delivery of the lands to our client, to return to him the produce carried away from the lands and to refrain from entering the lands." 9. A reading of the pleadings of both parties and documents, namely, Exs.A-2, A-3 and A-4 would go to show that even though the plaintiff had asserted that he had taken delivery as per Ex.A-2 through court Amin, there is a doubt regarding his statement and that was the reason for filing the present suit within a period of 9 months. Mr.M. V.Krishnan has very much relied on the very same decision of the Apex Court, particularly para 6, namely, that in the absence of any resistance or obstruction by the judgment-debtor at the time of delivery of possession, Sec.47 would not come into the picture and the presence suit filed by the plaintiff is well founded. As stated earlier having stated so in Ex.A-2 regarding the delivery of possession, in the plaint, in para 3 it is mentioned as follows: For the said notice the defendant sent a reply wherein it is contended that the delivery claimed is fictitious and cannot under any circumstances be regarded as effectual. "..The schedule mentioned land is delivered symbolically since the defendant was in possession under the colour of a registered sale alleged to have been executed by the defendant in O.S.No.511 of 1963 after the attachment was effect in E.P.No.308 of 1972." The above specific averment in the plaint falsifies the case of the plaintiff and it is also contrary to the specific averment made in Ex.A-2. In such a circumstance, as observed by their Lordships in the decision cited supra viz., Harnandraj v. Debidutt, A.I.R. 1973 S.C. 2423, the only remedy open to the plaintiff is to resort proceedings under Sec.47 and not separate suit. Even though Mr.M.V.Krishnan, learned counsel for the respondent has brought to my notice three decisions, namely, (1) Subbaraya Goundan v. Samiappa Goundan, A.I.R. 1946 Mad. 529; (2) Murugappa v. Nayanim, A.I.R. 1950 Mad. 314; (3) Chathu v. Janaki Amma, A.I.R. 1969 Ker. 121, in the light of Explanation II(b) of Sec.47(3), C.P.C., which was introduced by Amendment Act, 1976, I do not feel it necessary to deal with those decisions, since those cases have bene decided prior to the Amendment Act, 1976. 529; (2) Murugappa v. Nayanim, A.I.R. 1950 Mad. 314; (3) Chathu v. Janaki Amma, A.I.R. 1969 Ker. 121, in the light of Explanation II(b) of Sec.47(3), C.P.C., which was introduced by Amendment Act, 1976, I do not feel it necessary to deal with those decisions, since those cases have bene decided prior to the Amendment Act, 1976. On a reading of Sec.47 of the Civil Procedure Code more particularly Explanation II(b) which was substituted by Amendment Act, 1976, it is clear that if there is any dispute or question relating to the delivery of possession with regard to the property purchased through court auction, the same has to be determined by the court executing the decree and not by a separate suit. Even though the learned counsel for the respondent very much relied on para 6 of the Apex Court decision referred to above, I have already explained that the facts available clearly show that the matter has to be determined only by the court executing the decree as per Sec.47, C.P.C., referred to above. By understanding this position correctly, the trial court has rightly dismissed the suit. However, the lower appellate Court by misconstruing Ex.A-2 and forgetting the specific averment in the plaint erroneously distinguished the decision of the Apex Court in Harnandraj v. Debidutt, A.I.R. 1973 S.C. 2423. For the reasons mentioned above, the conclusion arrived at by the lower appellate court cannot be sustained. Inasmuch as the present suit is hit by Sec.47, C.P.C. the suit as laid is liable to be dismissed. There is no need to consider the purchase by the defendant and also the implication of Sec.64, C.P.C. 10. in the light of what is stated above, I am in agreement with the conclusion reached by the trial court and that the lower appellate court has committed an error in allowing the appeal and granting decree in favour of the plaintiff. Hence the substantial ques-tion of law No.2 is answered in the affirmative, accordingly the judgment and decree of the lower appellate court in A.S.No.65 of 82 dated 30.4.1983 are set aside and the judgment of the trial court dismissing the suit filed by the plaintiff in O.S.No.304 of 1975, dated 24. 1982 is confirmed. Net result, the second appeal is allowed. No costs.