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2001 DIGILAW 160 (MAD)

Eranaga Gounder v. Alagarsamy and others

2001-02-12

S.JAGADEESAN

body2001
JUDGMENT: The appellant herein is the second defendant in O.S.No.1450 of 1980 on the file of District Munsif, Dindigul. The first respondent herein filed the said suit for declaration of his title over the suit properties and for recovery of possession. His case is that the second respondent herein borrowed a sum of Rs.2,500 from him on 9.11.1956 on a promissory note. The first respondent filed the suit O.S.402 of 1970 on the file, of the District Munsif, Dindigul against the second respondent for recovery of the said sum due on the promissory note. During the pendency of the said sum the first respondent filed I.A.No.674 of 1970 and obtained an order of attachment in respect of the suit properties on 31.3.1970. Ultimately the said suit was decreed and the first respondent filed E.P.No.357 of 1972 and brought the properties for sale. The first respondent, after obtaining due permission from the Court, purchased the property in the Court auction sale held on 24.1.1973. Subsequent to the confirmation of the sale and the issue of sale certificate, the first respondent could not take possession of the property through execution, since he came to know that the appellant herein had purchased the property from the second respondent herein during the substance of the attachment order. Hence the present suit has been filed. 2. The third respondent had been impleaded as a party, since the appellant had mortgaged the first item of the suit property and since the said mortgage is not binding on the first respondent. 3. The appellant herein filed the written statement contending that he was not aware about the attachment of the suit property. He is a bona fide purchaser without notice of th order of attachment. He further pleaded total ignorance of the suit O.S.No.402 of 1970 filed by the first respondent herein against the second respondent. So far as an extent of 22 cents is concerned, the appellant pleaded that he purchased the same from the second respondent in the year 1952 much earlier to the proceedings initiated in O.S.No.402 of 1970. Since the appellant herein is the bona fide purchaser for value, the suit is liable to be dismissed. Respondents 2 and 3 were set ex parte. 4. Since the appellant herein is the bona fide purchaser for value, the suit is liable to be dismissed. Respondents 2 and 3 were set ex parte. 4. The learned Principal District Munsif who tried the suit, after careful consideration of both oral as well as documentary evidence, had decreed the suit by his judgment and decree dated 27.2.1982. 5. Aggrieved by the same, the appellant herein preferred an appeal A.S.No.15 of 1983 on the file of Sub Court, Dindigul. The learned Subordinate Judge who heard the appeal also concurred with the finding of the trial Court in all respects except in respect of 22 cents which the appellant claimed to have purchased in the year 1952. Consequently by his judgment and decree dated 9.8.1983 the learned Subordinate Judge partly allowed the appeal in respect of the said 22 cents in the second item of the plaint schedule properties and dismissed the appeal in other respects. Aggrieved by the same, the present second appeal has been filed. 6. At the time of admission of the second appeal, the following substantial questions of law were formulated: (1) Whether the first respondent/ decree-holder/ auction purchaser is precluded from instituting a suit for possession and is barred under Sec.47, C.P.C.? (2) Whether the order of attachment before judgment in I.A.No.674 of 1970 in O.S.No.402 of 1970 on the file of the District Munsif, Dindigul, was affected and in force so as to render the sale in favour of the appellant invalid? (3) Whether the appellant is a bona fide purchaser for value under Ex.B-2 is therefore valid? 7. Mr.R.Subramaniam, the learned counsel for the appellant vehemently contended that the respondent herein being a party to the proceedings in O.S.No.402 of 1970 ought to have resorted to the procedure prescribed under O.21, Rule 95, C.P.C. to recover possession of the properties. As he failed to do so, the suit is barred in view of Sec.47, C.P.C. Hence the present suit filed by the first respondent is not maintainable. The Courts below have totally failed to consider this vital aspect. 8. As he failed to do so, the suit is barred in view of Sec.47, C.P.C. Hence the present suit filed by the first respondent is not maintainable. The Courts below have totally failed to consider this vital aspect. 8. The learned counsel for the appellant contended that the first respondent, the auction purchaser, who is the plaintiff in the earlier suit O.S.No.402 of 1970 is a party to the proceeding and hence he ought to have filed an application under Sec.47, C.P.C. to resolve the dispute between himself and the respondent herein with regard to the delivery of possession. As he has not chosen to do so, the present suit is barred. He also relied upon the judgment reported in Harnandrai v. Debi Dutt, A.I.R. 1973 S.C. 2423 and Ranganatha Naidu v. Subramania Mudaliar, (2000)1 L.W. 647 . 9. It may be worthwhile to refer to Sec.47, C.P.C. which is as follows: “47. 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.... (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court. Explanation I: For the purposes 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 purpose 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 execution, discharge or satisfaction of the decree within the meaning of this Section.” Explanation II to Sub-sec.(3) of Sec.47, C.P.C. was added by way of amendment under the Central Act, 104 of 1976. Sub-Clause (b) of Explanation II to Sub-sec.(3) of Sec.47, C.P.C. refers to the question relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be question relating to the execution, discharge or satisfaction of the decree within the meaning of this Section. 10. On the basis of this explanation and on the basis of the judgment of the Supreme Court in Harnandrai v. Deb Dutt, A.I.R. 1973 S.C. 2423, it is contended that the plaintiff who is a purchaser in the execution is a party to the proceedings and hence he is bound to seek recovery of possession under O.21, Rule 95, C.P.C. and in case of any dispute resort to the remedy provided under Sec.47, C.P.C. 11. So far as this proposition is concerned, there cannot be any dispute. The first respondent who is the plaintiff in O.S.No.402 of 1970 and who turned to be the auction purchaser virtually a party to the earlier proceedings. But the question for consideration is whether his failure to resort to O.21, Rule 95, C.P.C. to recover possession pursuant to the Court auction sale would debar the present suit or whether the failure on the part of the first respondent in taking steps under Sec.47, C.P.C. would bear the suit. 12. So far as the first question is concerned, O.21, Rule 95 prescribes the mode of recovery of possession after the sale is confirmed in favour of the auction purchaser. It deals with the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. 13. It is clear that this is a mode prescribed under the Civil Procedure Code to enable the auction purchaser to get possession of the property. While seeking possession of the property either the judgment-debtor or whoever claims under the judgment-debtor is bound by the decree to deliver possession. 13. It is clear that this is a mode prescribed under the Civil Procedure Code to enable the auction purchaser to get possession of the property. While seeking possession of the property either the judgment-debtor or whoever claims under the judgment-debtor is bound by the decree to deliver possession. There is no reference in this Rule that the failure to resort to recover possession under this Rule will deprive the decree holder to recover the possession of the property by any other mode. Hence the failure on the part of the first respondent to file a petition under O.21, Rule 95, C.P.C. cannot be a bar to entertain the present suit. 14. Coming to the next question whether Sec.47, C.P.C. would cover the issue so that the first respondent cannot maintain the present suit. A perusal of Sec.47(1), C.P.C. reveals that 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. As already discussed, Sub-clause (b) of Explanation II to Sub-sec.(3) of Sec.47, C.P.C. makes it clear that only the purchaser or his representative in the Court auction shall be deemed to be the parties to the proceedings and the question of execution, discharge or satisfaction can be gone into. 15. So far as the appellant concerned, he cannot be considered to be a party to the proceeding or the representative of the second respondent who was the defendant in the earlier suit O.S.No.402 of 1970. Admittedly the appellant herein is not a party to the earlier suit O.S.No.402 of 1970. Hence the question whether he can be considered to be a representative of the second respondent herein. 16. This Court is of the opinion that the appellant herein cannot be considered to be the representative of the second respondent herein for the simple reason that he asserted his independent title, claiming that he is a bona fide purchaser for value. He does not claim any right under the second respondent, de hors the right of the second respondent is claiming that he is the bona fide purchaser for value and as such the Court auction sale is not binding on him and hence the delivery cannot be ordered. He does not claim any right under the second respondent, de hors the right of the second respondent is claiming that he is the bona fide purchaser for value and as such the Court auction sale is not binding on him and hence the delivery cannot be ordered. When that be so, definitely the appellant herein cannot be said to be a representative. Hence, the present suit is maintainable. Moreover, the appellant being purchaser of the suit property during the subsistence of the attachment order, the sale in his favour is void. Hence, he cannot be considered to be one who claims title under the second respondent. 17. So far as the judgment relied upon by the learned counsel for the appellant reported in Ranganatha Naidu v. Subramania Mudaliar, (2000)1 L.W. 647 , is concerned, the facts of that case are slightly different. There, the decree holder who turned to be the auction purchaser claims that the property had been delivered to him, though symbolical delivery. When that be so, it has been held that by way of execution the decree-holder/ auction purchaser got the delivery of possession. The question arises whether virtually by way of execution he obtained the possession or not. The question actually rises out of the execution with regard to the dispute of taking possession. Hence the learned Judge held that the question was one under Sec.47, C.P.C. and as such the suit is not maintainable. 18. Coming to the facts of the present case,admittedly the first respondent did not take out any execution proceedings for recovery of possession pursuant to the Court auction sale. He resorted to the present suit. Hence on the facts and circumstances of this case and in view of the findings given on the above two questions, this Court is of the opinion that the suit is maintainable and the judgment and decree of the Courts below can be sustained, even though for the other reasons given by this Court. 19. Accordingly the second appeal is dismissed. No cost.