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2013 DIGILAW 239 (KER)

SIDHARTHAN v. THANKAMANI

2013-03-18

N.K.BALAKRISHNAN

body2013
JUDGMENT : N.K. Balakrishnan, J. This Appeal is filed by the 3rd defendant in a suit for partition. A preliminary decree was passed by the trial Court. Appeal filed by the appellant herein was dismissed by the appellate Court. Admittedly the plaint schedule property originally belonged to Ramu the husband of deceased Kalyani and the father of plaintiffs 2 to 4 and the first defendant. A suit was filed earlier by the first defendant one of the sons of deceased Ramu against the 2nd defendant. (That suit is unconnected with the suit property). That suit was dismissed. For realisation of the cost the 2nd defendant brought the plaint schedule property for sale. The property was sold in court auction. It was purchased in auction by the 2nd defendant and her mother. The sale was confirmed and the sale certificate was issued. Though a petition was filed under Order XXI Rule 90 as E.A. 89/1985 to set aside the sale, that application was dismissed. Thereafter, a suit O.S. 503/1986 was filed to set aside the sale. That suit was also dismissed. It is thereafter, the present suit was filed for partition as O.S. No. 42/1994. 2. The 3rd defendant contended that since the property was sold in court auction and was subsequently assigned to him by D2 and her mother (the auction purchaser) the present suit for partition is barred by res judicata. It was also contended that the plaintiffs are estopped from contending that they have got right over the property. These contentions were negatived by the trial Court. Appeal filed against the same was dismissed. 3. The Suit O.S. 84/1982 was filed by the first defendant against the 2nd defendant. The 2nd defendant filed execution petition for realisation of the cost awarded in that suit and for that purpose the plaint schedule property was put up for sale. It is not in dispute that the 2nd defendant and her mother purchased the property in court auction. But it is important to note that it was only the right of the first defendant over the plaint schedule property that could be sold in court auction. Admittedly the property belonged to Ramu. So, Nakulan, the first defendant had only 1/6 share in the property. Therefore, by virtue of the court auction the 2nd defendant and her mother could obtain only 1/6 share in the said property. Admittedly the property belonged to Ramu. So, Nakulan, the first defendant had only 1/6 share in the property. Therefore, by virtue of the court auction the 2nd defendant and her mother could obtain only 1/6 share in the said property. It is true that a petition was filed under Order XXI Rule 90 stating that the sale is vitiated by fraud and also to set aside the sale. Ext. A6 is the certified copy of the application filed in E.A. 89/1985 and Ext. A7 is the certified copy of the order passed in that application. 4. The learned Munsiff has rightly found that Ext. A7 would only show that the petition under Order XXI Rule 90 was dismissed on the ground that it was filed out of time. It was also observed that the interest of the petitioners in that application was not affected by the sale evidently because the confirmation of the sale and issuance of the sale certificate would only be in respect of the judgment debtor's right over the said property and not of the right of other parties. The judgment debtor had only 1/6 share in the said property as on that date. So, the auction purchaser could get only 1/6 share in the said property. Therefore, the contention that the dismissal of E.A. 89/1985 would operate as res judicata was turned down by the trial Court. Similarly though O.S. 503/1986 was filed that was dismissed on the ground that E.A. 89/1985 was already dismissed. That also will not take away the plaintiffs' right over the plaint schedule property. By virtue of the dismissal of E.A. 89/1985 and O.S. 503/1986, the petitioners therein (the plaintiffs in the suit) cannot contend that the sale is vitiated or that the sale did not take place. But that does not mean that the auction purchaser could get right over the entire property. The auction purchaser can get only the right which the judgment debtor had over the property which was put up for sale and not anything more. There is no warranty of title nor can it be held that the entire right of other co-owners in the said property would be lost on the ground that the fractional share of the first defendant was put up for sale in the execution petition. 5. Similarly no question of estoppel also does arise in this case. There is no warranty of title nor can it be held that the entire right of other co-owners in the said property would be lost on the ground that the fractional share of the first defendant was put up for sale in the execution petition. 5. Similarly no question of estoppel also does arise in this case. The learned Munsiff has dealt with the matter in extenso touching upon all the relevant issues and found that the plea raised by the appellant is unsustainable. Since the third defendant is only a purchaser of the right obtained by the second defendant and her mother, the third defendant cannot claim any better right over the plaint schedule property than the first defendant had. He would be entitled to get only 1/6 share in the property which the first defendant had in the said property. 6. It is important to note that the learned Munsiff had dismissed the suit initially. The plaintiffs then filed A.S. 58/1999 before the Sub court. The Sub Court allowed the appeal and decreed the suit allowing partition. Then the appellant herein preferred a Second Appeal 473/2000 before this Court. This Court by judgment dated 30-07-2010 set aside the judgment in A.S. 58/1999 of Sub Court, Thrissur and remanded the matter for fresh consideration. After remand, the learned Munsiff again considered the matter in extenso and found that the plea raised by the appellant herein is unsustainable. Admittedly, the property belonged to Ramu and so the plaintiffs who are admittedly the legal heirs of deceased Ramu had 5/6 share in the said property. That could not have been sold in court auction. The court auction was and could only be in respect of the right/share of the first defendant in the said property. 7. Under Rule 91 of Order XXI, it is open to the court-auction purchaser to apply to the court to set aside the sale on the ground that the Judgment Debtor had no saleable interest in the property sold. Rule 92 of Order XXI provides that where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Rule 92 of Order XXI provides that where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute. Rule 94 of Order XXI provides that where a sale of immovable property has become absolute, the Court must grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate is to bear the date the day on which the sale becomes absolute. S. 65 of CPC lays down that where an immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. Therefore, it is contended that the necessary corollary is that the purchaser's title relates back to the date of sale and not confirmation of sale. In view of the finality attached thereto, the purchaser's title cannot be questioned at all, the learned counsel for the appellant submits. It is correct that the moment the sale is held, the judgment debtor loses his title and interest therein and it is the purchaser who becomes the owner thereof from the date of sale and so, the auction purchaser can, from that moment dispose of that property. Therefore, it is argued that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold. But what passes to a purchaser in court sale is the right, title and interest of the judgment debtor, whatever that interest may be and not of any other. The auction purchaser buys the property with all risks and defects in the judgment debtor's title. It is trite that there is no guarantee of title in respect of the property put up for sale and purchased by the auction purchaser since what passes on to this auction purchaser is only the right, title and interest of the judgment debtor over the property put up for sale and not anything more. 8. In the decision in Varkey Mathai and Others Vs. 8. In the decision in Varkey Mathai and Others Vs. Oommen Oommen and Others, the suit was filed by the court auction purchaser for refund of price paid for a void court sale. There, the property belonged to one Narayana Panicker. He mortgaged it with possession to Kurien Isaac and subsequently hypothecated the equity of redemption to the first defendant therein who sued on the hypothecation, obtained decree thereon, took out execution and purchased the suit property in court auction and a sale certificate was obtained based on which he also got a symbolical delivery of the property. Subsequently he sold his right to Isaac Sosamma, who by that time had succeeded to the mortgage on the property. Subsequent to the court sale, the equity of redemption was again sold in execution and the sale was confirmed, pursuant whereto the sale certificate was issued. The court auction purchaser who came to know of the earlier court sale in favour of the first defendant instituted the suit for re-fund of sale amount. It was held in that decision: Though there is no warranty of title in a court sale, and the rule of caveat emptor applies thereto, there is a representation well implied in the proceedings in execution that what is proceeded against is the property of the judgment-debtor in the case. It may be that the judgment-debtor has not the same interest in the property as is proclaimed he has. But if he has any interest in the property, be it a life interest, a mortgage interest, a leasehold interest or other limited interest, still it may be said to be the property of the judgment-debtor to the extent of that interest. If the Judgment Debtor has no saleable interest in the property it must be held that it is not the property of the Judgment Debtor. Here, the first defendant in the suit had a fractional share, namely 1/6 share in the property put up for sale and so, only the fractional right in the property of the Judgment Debtor that would pass on to the purchaser. In other words, it does not mean that the Judgment Debtor had absolute and full right over the property. It is only the fractional right or limited interest in the property of the Judgment Debtor which was put up for sale in execution of the decree. In other words, it does not mean that the Judgment Debtor had absolute and full right over the property. It is only the fractional right or limited interest in the property of the Judgment Debtor which was put up for sale in execution of the decree. Therefore, what is meant by Rule 92 and Rule 94 of Order XXI is that by virtue of such sale in respect of which sale certificate has been granted in favour of the auction purchaser, it is only the saleable interest of the judgment debtor that will pass on to the purchaser and not any right the judgment debtor might have proclaimed. Even in a sale/transfer between private parties the right what the vendor had over that property alone will pass on to the purchaser. It is axiomatic that a person can confer no better title than what he in fact had over the said property. Therefore, the contention that as sale certificate was issued and delivery was effected, the entire right over the property would pass on to the purchasers is rather unsound and untenable. 9. The fact that the application filed by the co-owners to set aside the sale was dismissed does not alter the position. By the dismissal of that petition the plaintiffs cannot challenge the sale of the saleable interest of the Judgment Debtor (first defendant) in the said property and no other consequence follows. Finality attached is only to that part of the action taken in the execution, that there was a sale of the saleable right or interest of the Judgment-Debtor (first defendant) over the said property and only to that extent Ext. A7 the order of dismissal of A6 application filed by the plaintiff would operate. It cannot affect the right, title and interest of the plaintiffs over the said property which was not and which could not be sold in execution of the decree against the first defendant when the first defendant is admittedly having only 1/6 share in the said property. 10. It was held by the Full Bench of the Madras High Court in V. Macha Koundan Vs. 10. It was held by the Full Bench of the Madras High Court in V. Macha Koundan Vs. V.K. Kottora Koundan, : It is clear that this clause (S. 315 of the C.P.C. 1882 which corresponds to O.21 R. 93 of the C.P.C. 1908 recognises the right of the auction purchaser to obtain a refund of his purchase money if there is no saleable interest though there is no warranty of title. What is meant is that though in a Court sale there is not such a warranty as to the extent of title as we find in a private transaction between a vendor and a purchaser, still the Code adopts the view that there is a limited kind of warranty, viz., that the judgment debtor possesses some little interest however small it may be. If the judgment debtor's interest turns out to be nothing, the Court practically makes a promise that the decree holder will have a refund of his purchase money. There is also a Full Bench decision of the Andhra Pradesh High Court in Yadavalli Suryakanthamma and Another Vs. Maddipatla Dorayya and Another. There it was found that the Judgment Debtor was not having any saleable interest in the property sold in execution and so, subsequently a suit was filed by the auction purchaser for re-fund of purchase money. That suit was held to be not maintainable. The ratio decided in that case so far as it is germane for our consideration is that there is no guarantee of title of the Judgment Debtor to the property sold in court auction. That suit was held to be not maintainable. The ratio decided in that case so far as it is germane for our consideration is that there is no guarantee of title of the Judgment Debtor to the property sold in court auction. It was held in that decision: Thus, there is a strong current of authority vouching the proposition that sales in invitum do not involve a covenant of title that the purchaser accepts the property with all its risks and the rule of caveat emptor applies to these cases, that as a necessary corollary he has no right of recovery of the purchase price except as contemplated by the provisions of Order 21, Rule 91 read with Rule 93 and that the remedy of suit which was conferred by Section 315 of the Code of 1882 was no longer available by reason of the omission of paragraphs 2 and 4 of that section in Rule 93 and that the only redress which the purchaser can seek under the present Code is to have the sale set aside under Rule 91 before it is made absolute under Rule 92 and thereafter to apply for an order for repayment of that money. It was held in Ouseph Ouseph Vs. Devasia Chacko, There is no warranty of title in a court sale and the purchaser bids at his own risk. He has to be satisfied with the extent of the right that really passes to him under the sale. He can avoid the sale only where there has been a total failure of consideration for the price paid by him at the court sale on account of the fact that in the property put up for sale the judgment debtor had no interest at all to be conveyed under the sale. But, where the judgment-debtor had some saleable interest however small it may have been, the court sale cannot be set aside on the ground that the judgment-debtor had no saleable interest in the property sold. Similar was the view taken by the Patna High Court in Maharajadhiraj Kameshwar Singh Bahadur Vs. Bansidhar Marwari, and Madras High Court in Alapati Subbarayudu Vs. Jallipalli Lakshmayya. 11. Similar was the view taken by the Patna High Court in Maharajadhiraj Kameshwar Singh Bahadur Vs. Bansidhar Marwari, and Madras High Court in Alapati Subbarayudu Vs. Jallipalli Lakshmayya. 11. In Sulaiman Kasim v. Ahammathu Pillai Aliarkunju (1947 TLR 132(F.B.)) it was held: Where a thing sold is non existent, the transaction of sale is necessarily otiose and bad, whether it be a court sale or whether it, be a private sale. It is quite clear that the sale certificate issued by a court pursuant to a court auction sale is almost like a sale deed in a transaction inter prates and so, if the vendor had no absolute title, no better title can pass on to the vendee. Therefore, the contention that since in Exts. A6 and A7, the plaint schedule property was shown as the property put up for sale, the 2nd defendant and her mother, the auction purchasers had obtained an absolute and indefeasible right over the entire property cannot be sustained at all. 12. The very fact that the auction purchaser has been given a remedy under Rule 91 of Order XXI to set aside the sale on the ground that the Judgment Debtor had no saleable interest would make it clear that there is no warranty of title only because the auction purchaser is given a sale certificate pursuant to the sale conducted in the court auction. 13. It is argued by the learned counsel for the appellant that after the dismissal of the application filed by the plaintiffs to set aside the sale, they filed a suit as O.S. No. 503/86 "and that was dismissed on the ground of res judicata and as such, the present suit is also barred by res judicata. I find no merit in that contention as well. As has been observed by the courts below, the factum of dismissal of the application under Rule 89 of Order XXI and the dismissal of the suit filed thereafter would only preclude the plaintiffs from questioning the sale conducted but that does not mean that the auction purchasers (2nd defendant and her mother) had obtained absolute title over the property when it is trite law that it is only the saleable right or interest over the immovable property of the Judgment Debtor that would pass on to the auction purchaser and nothing more. Here, it is the undisputed fact that the property originally belonged to Ramu, the Predecessor in interest of the plaintiffs and the first defendant and that first defendant had only undivided 1/6 share in the property which was put up for sale and as such, the purchasers would get only that undivided 1/6 share in the property sold in court auction. The sale certificate guarantees only that much. The contention to the contrary advanced by the appellant is bereft of any merit. 14. It was held by the Division Bench of this Court in Cherla Poulose Koovapally Kattavil Vs. K.P. Sathiavan Nair and Another : It is well known that a Court sale carries with it no guarantee that the property sold in auction is that of the judgment-debtor or that it is free from any defect of title and the principle of caveat emptor applies to such sales. Sale in execution of the decree is not void for the reason that the property sold in court auction does not belong to the judgment-debtor. It was also held that if Order XXI Rule 90 comprehends the filing of application by an auction purchaser that rule will be sufficient to cover cases where a judgment debtor has no sailable interest in the property and that Order XXI Rule 91 will then be unnecessary. 15. The learned counsel for the appellant has relied upon the decision in Ghanshyamdas and another Vs. Om Parkash and another, in support of his submission that the attachment and consequent sale had attained finality and so the plaintiffs cannot question the sale or the sale certificate or the subsequent assignment deed executed by the 2nd defendant and her mother in favour of the appellant. Though plea of res judicata as raised in this case was raised before the Apex Court in the aforesaid case that was not accepted by the Apex Court. Here it is argued that since the appellants questioned the sale by filing the application and since that was dismissed, they are estopped from putting forth the same plea by filing a suit for partition. Here it is argued that since the appellants questioned the sale by filing the application and since that was dismissed, they are estopped from putting forth the same plea by filing a suit for partition. However, the Apex Court, in the decision cited supra, in the last paragraphs held that the half share belonging to Jamnadas could not have been sold in execution of a decree to which he was not a party and ultimately, the appellant therein who was the auction purchaser was directed to pay Rs. 50,000/- to the respondents in lieu of recovery of possession of the half share of Jamnadas. Even in the aforesaid decision it was held that the undivided half share of Jamnadas could not have been sold in court auction in execution of the decree against the other co-owner. Therefore, it is clear that the Apex Court recognized that the other co-owner who was not a party to the earlier suit was having one half share and in lieu of that share he was directed to be given Rs. 50,000/-. Hence, the decision in Ghanshyamdas (supra) is also not of much help to the appellant. 16. The Supreme Court decision in United Bank of India Vs. Official Liquidator and Others, can also be referred to here. Though that was a case concerning sale of property and the assets of the Company by Official Liquidator, the principle enunciated therein is that when the Official Liquidator sells the property and assets of the Company in liquidation under the Orders of Court, he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he was proceeding upon the basis of what the records of the company in liquidation show and it is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. It was further held that that he cannot after having purchased the property on such terms claim diminution in the price on the ground of defect in title or description in the property. This has been referred to here to contend that in ordinary court sale and sale by the official liquidator of the Company the position is the same that there is no warranty of title in respect of the property sold in such auction. This has been referred to here to contend that in ordinary court sale and sale by the official liquidator of the Company the position is the same that there is no warranty of title in respect of the property sold in such auction. It was held by the Apex Court in The Ahmedabad Municipal Corporation of the City of Ahmedabad Vs. Haji Abdulgafur Haji Hussenbhai, thus: To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects to title and the doctrine caveat emptor (let the purchaser beware) applies to such purchaser. (underlined by me to lay emphasis) In the light of what has been stated above, I have no hesitation to hold that the third defendant who obtained assignment from D2 and her mother could obtain only the undivided 1/6 share in the plaint schedule property. The right of the plaintiffs with regard to the remaining 5/6 share is not affected by the court sale. Therefore, the suit for partition is perfectly maintainable. The preliminary decree granted by the courts below are only to be sustained and as such, this Regular Second Appeal is dismissed in limine.