Chowdhari Abdul Subhan Sahib vs Kante Ramanna

The question in this appeal is whether an uncertified adjustment of a decree can be pleaded by way of defence to a suit for possession instituted

by the purchaser of property sold in execution of the decree against the judgment-debtor or his representative. The appeal has been heard by a

Full Bench as there is considerable conflict of authority.

On the 16th March, 1911, one Lakshmi Narasamma, the widow of a deceased member of an undivided family, obtained a decree for

maintenance against the two brothers of her husband and was given a charge on the property now in suit and other properties belonging to the joint

family. Sometime before 1924--the record does not disclose the exact date--the decree was satisfied by a lump sum payment, but the adjustment

was not certified under Order 21, Rule 2 of the Code of Civil Procedure. In 1927, in insolvency proceedings No. 20 of 1927 on the file of the

Subordinate Judge of Rajahmundry one of the brothers, Jogayya Sastri, was adjudicated an insolvent. In 1932 the Official Receiver sold the

insolvent''s share in the property in suit to one Subbarayudu, whose sons conveyed it on the 19th July, 1933, to the defendant. On the 4th

November, 1935, the defendant purchased the interest of the other brother, Kameswara Rao. The property had been let to a tenant named Y.

Virraju and in 1933, the defendant filed a small cause suit (No. 1071 of 1933) in the Court of the District Munsiff, Cocanada,for the rent due in

respect of a half share of the property and obtained a decree. After the defendant had purchased the interest of Kameswara Rao and thereby had

become entitled to the whole property subject to the charge in favour of Lakshmi Narasamma, he gave notice to Virraju to vacate. Virraju denied

the defendant''s title and consequently the defendant filed O.S. No. 89 of 1936 in the Court of the District Munsiff of Cocanada for the ejectment

of Virraju. On the 15th March, 1937, he was granted a decree and as a result obtained possession. ''

In the meantime, Virnaju had induced the decree-holder in the maintenance suit to proceed in execution for arrears of maintenance for three

years. This petition was filed on the 15th March, 1936, for the recovery of the sum of Rs. 258. The judgment-debtors did not enter any

appearance and on the 8th December, 1936, the property was sold by the Court to the plaintiff for Rs. 375. Notice of these proceedings was not

served upon the defendant and he was entirely ignorant of what was happening. On the 23rd March, 1937, the plaintiff was given symbolical

possession of the property. Virraju was still in physical possession. On the 14th July, 1937, the plaintiff filed the present suit in the Court of the

District Munsiff of Ramachandrapur for an injunction restraining the defendant from interfering with his possession. On the 4th July, 1938, the suit

was converted into one for possession of the property. The District Munsiff found that the maintenance decree had been satisfied long ago, that the

sale in execution which took place on the 8th December, 1936, had been obtained as the result of fraud on the part of the decree-holder and

Virraju, that the plaintiff was not a bona fide purchaser, but merely a benamidar for Virraju and that the defendant was a bona fide purchaser for

value without notice of the charge on the property or of the execution proceedings. On these findings the District Munsiff dismissed the suit. On

appeal, the Subordinate Judge concurred in all the findings of fact arrived at by the District Munsiff and cornfirmed the decree passed by him. The

plaintiff then appealed to this Court. The appeal was heard by Happell, J., who, relying on the judgment of the Full Bench of the Calcutta High

Court which decided Lakshmanchandra Naskar v. Ramdas Mandal1, allowed it and consequently ordered the defendant to deliver possession of

the property to the plaintiff. The present appeal is by the defendant under Clause 15 of the Letters Patent.

Mr. Justice Happell accepted as being well established the following propositions of law stated in Mulla''s Commentary on the Code of Civil

Procedure, nth edition, pages 744 and 745:

(1) Where the adjustment of a decree has not been certified the judgment-debtor cannot successfully resist execution of the decree by pleading

that it has been satisfied, because of the bar imposed by Clause (3) of Order 21, Rule 2; (2) a judgment-debtor cannot'' maintain a suit for an

injunction restraining the decree-holder from executing the decree or a suit to set it aside, because such suits relate to execution within the meaning

of Section 47 of the Code; and (3) a judgment-debtor can maintain a suit to recover back the'' money paid to the decree-holder but uncertified as

damages for breach of contract, because such a suit does not fall within the purview of Section 47.

We agree that these propositions must now be regarded as being well established. Sub-rule (3) of Rule 2 of Order 21 is most emphatic in its

language. It says that a payment or adjustment which has not been certified or recorded shall not be recognised by any Court executing the decree.

Sub-rule (1) of Rule 92 says 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 and Sub-rule (3) that no suit to set

aside an order made under Rule 92 shall be brought by any person against whom such order is made. Therefore, fraud on the part of the decree-

holder in abstaining from certifying an adjustment will not help the judgment-debtor, once the sale has been confirmed in execution. In these

circumstances it is difficult to see any foundation for the opinion expressed in some of the reported cases that a judgment-debtor or his

representative can plead an uncertified adjustment of the decree in answer to a suit for possession by the auction purchaser.

In Lakshmanchandra Naskar v. Ramdas Mandal I.L.R.(1929)Cal. 403 the question whether an objection to the sale in execution On the

ground that the decree, in execution of which property was sold, was satisfied before the sale, can be pleaded by the judgment-debtor by way of

defence in the purchaser''s suit for possession of the property was fully discussed. It was held that the judgment-debtor could, not set up an

uncertified adjustment as a bar to the suit. His only remedy was to sue for damages or for the recovery of the money paid under the adjustment. In

the course of his judgment Rankin, C.J., pointed out that a question between plaintiff and defendant as to whether the decree had been satisfied or

was a decree of which the plaintiff was entitled to have execution was one of a class of questions which Section 47 of the Code said "" shall be

determined by the Court executing the decree"". Section 47 did not mean merely that the execution Court must determine it, if it was raised in the

course of the execution proceedings. It meant that the Court executing the decree was given exclusive jurisdiction over the matter as being one

which related to the execution. The words "" and not by a separate suit "" showed clearly that the section was forbidding for this purpose the use of

the ordinary means whereby rights were determined. Later in his judgment the learned Chief Justice observed that as between parties and their

representatives the act of the Court in effecting a sale was to confer title to property and not merely to litigation. It was part of the purpose of

Section 47 to ensure that, so far as regards parties to the suit, the executing

Court should, where the decree itself was valid, settle and determine the right to have execution and give a title to the purchaser. It was no part

of its purpose to put a premium upon the forceful or wrongful seizure of possession or to make titles valid or invalid according as the one party or

the other was plaintiff or defendant in any litigation subsequent to the sale--a thing which was a matter of pure enhance.

We will now examine the decision of this Court. In Rama Iyer v. Rama Iyer I.L.R.(1898)Mad 356 a decree had been adjusted, but the decree-

holder had not caused the adjustment to be certified. He had falsely stated to the judgment-debtor''s agent that the requisite petition certifying the

adjustment had been presented. Having made this statement and thereby having prevented the judgment-debtor himself taking the necessary steps

he proceeded to apply for execution. Having obtained leave to bid at the sale, he purchased the property at the auction. When the judgment-

debtor discovered what had happened, he filed an application u/s 311 of the Code of ,1882 to which Order 21, Rule 90 of the present Code

corresponds, and later another application u/s 244, to which Section 47 corresponds on the ground that a fraud had been practised on the Court.

Shephard and Boddam, JJ., held that the judgment-debtor was entitled to have the sale set aside and observed that if the Court had been

appraised of the facts, the decree-holder would not have been given leave to bid and the sale would never have taken place. This decision was

clearly wrong and has not been followed. In Budrudeen v. Gulam Mohideen (1911)24 M.L.J. 541 : ILR 36 Mad. 357, Sundara Aiyar and Ayling,

JJ., expressed the opinion that the decision in Rama Iyer v. Rama Iyer1 could be regarded as right if the first application which the judgment-

debtor made were considered as an application for recording the adjustment. The learned Judges in Rama Iyer v. Rama Iyer I.L.R.(1898)Mad

356 did not, however, treat the application as one for the recording of the adjustment.

In Periatambi Odayan Vs. Vellaya Kavundun and Another, , this Court held that a judgment-debtor could not object to execution where there

had been an uncertified adjustment, but he could sue to recover what he had paid to the decree-holder if it were too late to have the adjustment

certified. In Budrudeen v. Gulam Mohideen (1911)24 M.L.J. 541 : ILR 36 Mad. 357, the Court held that a judgment-debtor''s objection to

execution on the ground that the decree had been satisfied could be treated as an application to certify if the objection were filed within 90 days of

the adjustment. The question whether an uncertified adjustment can be pleaded as an objection to execution was considered by a Full Bench of

this Court in Nalam Subramaniam Vs. Devara Ramaswami and Others, , and the answer was that it could not, but the judgment does not preclude

the Court treating such an objection as an application for certification if taken within the period of limitation.

In Venkataramachariar v. Meenatchi Sundaram Iyer (1908) 19 M.L.J. 1, White, C.J. and Davies, J., held that where a decree-holder has

purchased property sold in execution of his decree and he sues for possession, the defendant is entitled to raise the defence that the sale certificate

is inaccurate in that certain items of property not comprised in the decree have been included in it. They relied on a decision in Bhiram All Shaik v.

Gopi Kanth Shaha I.L.R.(1897)Cal. 355 which was overruled by the Full Bench which decided Lakshmanchandra Naskar v. Ramdas Manda

I.L.R.(1929)Cal. 403 this Court followed Venkataramachariar v. Meenakshi Sundara Iyer (1908) 19 M.L.J. 1 in Munishi China Dandasi v.

Munishi Peda Tatiah (1920) 41 M.L.J. 261.

The judgments delivered by this Court in Thathu Naick v. Kondu Reddi I.L.R.(1909)Mad. 242 , disclosed a difference of opinion. There, the

holder of a mortgage decree applied for execution and asked for permission to bid at the sale. Permission was given, but the Court fixed an

amount as the minimum at which he was to start bidding. The decree-holder bought the property in the name of a third person for less than the

minimum fixed by the Court and less than the principal amount secured by the mortgage. The Court confirmed the sale and symbolical'' possession

was given to the purchaser, who was resisted by the persons inactual possession. The auction purchaser then brought a suit for possession. The

defendants pleaded that the decree-holder had acted fraudulently in that he had induced the Court, to confirm the salet without having brought to

its notice the fact that he had paid less than the amount fixed. It was held by Miller and Sankaran Nair, JJ., that it was open to the defendants to

have the sale set aside in the suit by way of answer to the plaintiff''s claim. Abdur Rahifn, J., dissented. He was of opinion that the sale could not be

set aside except on an application under Sections 294 and 244 of the Code then in force. Sankaran Nair, J., considered that as a plaint in a suit in

the Court executing the decree might be treated as an application u/s 244, a written statement containing an answer to the plaintiff''s claim could be

treated as an application u/s 244.

In Kulathu Aiyar v. Vaithilingam Iyer (1927) 26 L.W. 349 it was held that a defendant could plead an uncertified adjustment by way of

defence to a suit provided that he was not one of the parties to the decree.

In our judgment it is not open to a judgment debtor or any one standing in his shoes to plead an uncertified adjustment of the decree by way of

defence to a suit filed by the auction purchaser for possession. We are in accord with all that was said in Lakshmanchandra Naskar v. Ramdas

Mandal ILR (1929) Cal. 403 An uncertified adjustment cannot be pleaded in bar of execution and once the sale has been confirmed by the Court

it confers an absolute title on the auction purchaser, whether he be the decree-holder or a stranger, provided there was title in the judgment-

debtor. This is clearly the effect of Order 21, Rule 92. It matters not whether the decree-holder has deliberately deceived the judgment-debtor and

by false statements prevented him from taking steps himself to have an adjustment certified. To hold that a judgment-debtor or his representative

can resist a suit for possession by the auction purchaser would mean a disregard of statutory provisions expressed in unambiguous language.

The decision in Rama Iyer v. Rama Iyer ILR (1898) Mad. 356 is overruled and also those decisions of this Court which say that a suit for

possession by the auction purchaser can be resisted by the judgment debtor or his representative on the ground that there has been an uncertified

adjustment.

The appeal fails and is dismissed with costs.