Chinnathayee alias Kondammal vs Lakshmi Achi (deceased) and Others

Madhavan Nair, J.—The plaintiff is the appellant. This appeal arises out of a suit instituted by the plaintiff for a declaration that the decrees in

O.S. Nos. 16 of 1922 and 11 of 1924 on the file of the Subordinate Judge''s Court of Dindigul obtained by defendants 1 to 3 and the subsequent

execution proceedings are not binding on her and on the suit property. The facts are briefly these: The suit property along with other properties had

been mortgaged on 5th March, 1914, by the son of the original owner and on that mortgage the present defendants 1 and 2 instituted a suit against

the mortgagor, first defendant in that suit. The present plaintiff''s husband was defendant No. 9 in the suit. He was impleaded as a party as he was

a subsequent purchaser of a portion of the hypotheca included in that suit. Item 10 in the schedule to the plaint is the present plaint item. A

preliminary decree was passed in that suit and subsequent to that decree the plaintiff''s husband died and the present plaintiff was brought on

record as his legal representative and was impleaded as the sixteenth defendant. The final decree that was passed directed the sale of the

properties as directed by the preliminary decree. O.S. No. 11 of 1924 was instituted by the third defendant on another mortgage dated 25th

March, 1914, executed by the son of the original owner hypothecating the plaint item along with other items. In that suit the plaintiff''s husband was

eleventh defendant and he was impleaded as a subsequent encumbrancer of the hypotheca. The present plaint item was item 7 in that suit. A final

decree was passed in the suit and execution proceedings were taken by the decree-holder, the present third defendant. The proceedings went up

to the stage of sale but were stopped as the property was already sold in execution of the decree in O.S. No. 16 of 1922.

It will thus be seen that in both the suits effective mortgage decrees were passed, that plaintiff''s husband was a party to the decrees, and during

the final decree proceedings the plaintiff was brought on record as her husband''s legal representative and she was also a party throughout the

execution proceedings, when the property involved was sold and the sale was confirmed. In the present suit the plaintiff claims a paramount title to

the suit property as against both the mortgagor and the mortgagee.

The contention of the respondents is that the suit is barred u/s 47, Civil Procedure Code, and that the plaintiff having failed to put forward her

claim of paramount title in course of the execution proceedings she is precluded from raising the contention in the present suit. Various other

questions of law were also raised. All these questions have been carefully considered by the lower Court. It came to the conclusion that the suit is

not maintainable. In paragraph 15 of the judgment the learned Judge summarises the conclusions arrived at by him on an examination of the case-

law. Therein he points out that though the plaintiff''s right to set up the paramount title to the plaint property may not be barred by res judicata by

reason of the previous decisions, still inasmuch as she was a party to the final decree and as the property in question was ordered to be sold and as

the property was also actually sold in execution of the decree and the sale was confirmed and as she did not within the prescribed time take the

necessary proceedings to set aside the sale, she is no longer entitled to institute a fresh suit to agitate her claim of paramount title.

In appeal it is argued that the question of paramount title cannot be raised in course of execution u/s 47, Civil Procedure Code, as it will be

questioning the decree which directs the sale of the property. Whether the question of paramount title can be raised or not in execution u/s 47, Civil

Procedure Code, arose for a decision in a case in this Court reported in Govindarajulu Naidu v. Chinnathambi Padayachi (1927) 111 I.C. 147. In

that case defendants 2 to 4 were lessees of the mortgagor and were impleaded as defendants along with the mortgagor in a suit upon the mortgage

and they claimed title paramount both as against the mortgagor and the mortgagee. Their title was not decided in the suit. In execution of the

decree they were dispossessed and they put in an application under Order 21, Rule 100 to recover possession which they would be entitled to do

if they were not parties to the suit. The question arose whether the Order of the lower Court was appealable. If the Order was one which fell

within the purview of Order 21, Rule 100 no appeal would lie, but if it fell within Section 47, Civil Procedure Code, the Order would be

appealable. The learned Judges Ramesam and Jackson, JJ., held that the claim of defendants 2 to 4 could be agitated u/s 47, Civil Procedure

Code, and should have been decided under that section and therefore the Order was appealable and the learned Judges set aside the decision of

the lower Court. This decision supports the view that the question of paramount title could be raised, u/s 47, Civil Procedure Code, and if it could

be so raised, certainly the subsequent suit raising the same question would be barfed. Krishnappa Mudaly v. Periaswamy Mudaly (1916) 32

M.L.J. 532 : ILR 40 Mad. 964 also supports the view that the question of paramount title could be raised u/s 47, Civil Procedure Code. In that

case the parties were exonerated and so it was held that the proceedings to recover possession by them in execution would fall under Order 21,

Rule 100 and not u/s 47, Civil Procedure Code, suggesting that if they were not so exonerated the proper procedure would be to take

proceedings u/s 47, Civil Procedure Code, in which case a subsequent suit for the same relief would be barred. A case exactly like the present is

reported in Nand Kishore v. Sultan Singh I.L.R (1925) 7 Lah. 1. The learned Judges there held that a subsequent suit to set aside a previous

decree by a party claiming paramount title, that party having been a party in a previous suit and execution proceedings, is not maintainable having

regard to Order 21, Rule 92(3). That decision is directly in point and as we have pointed out the two decisions already referred to also support the

same view. Following those decisions we hold that the appellant''s suit is not maintainable as she could have raised the question of paramount title

in execution proceedings or tried to get the sale set aside under Order 21, Rule 92 (3) neither of which things was done by her.

No other questions were argued. The appeal is dismissed with costs.