E.J. Philipose vs Karunakara Nair

Subramania Iyer, J.—This revision arises out of an order passed by the Court below upholding the obstruction to delivery of properties sold in execution of a decree obtained by the Petitioner in enforcement of a deed of hypothecation and purchased by him in O.S. 1705 of 1105. The obstruction was offered by the Respondent who was the transferee of the rights of the decree-holder auction-purchaser in O.S. 468 of 1110 who was the jenmi of the properties and whose suit was for recovery of the amounts due to him from the kanam tenant as such jenmi, for which dues, a charge was claimed and was granted. In enforcement of the decree for sale of the properties in O.S. 468 of 1110, the Court sold them and the decree-holder became the purchaser. The right under the sale was assigned by the decree-holder purchaser to the Respondent who got a sate certificate but did not apply for nor obtain delivery through court. He obtained possession by surrender from a tenant who was in possession of the properties under the kanamdar by taking a deed of release and after taking that release, he leased the properties to the same person as tenant.

The obstruction was offered by the Respondent by an application in anticipation of an order for delivery but after an application in that behalf had been filed by the purchaser (Petitioner). In the petition of obstruction, it was alleged that he got release and possession of the properties from a tenant who was in possession of the properties under the kanamdar and that he had given back possession to that very person as a tenant under him. It was also alleged that his possession is not such as to be disturbed in enforcement of the sale certificate obtained by the Petitioner. The Petitioner here filed a written objection to the petition of obstruction wherein he contended that there has not been a delivery through Court to the Respondent, that the release deed taken by him is not valid, the same having been taken after the sale in O.S. 1705 of 1105 at which he purchased the properties and being taken at that time, it was bad for LIS PENDENS.: He also contended that the petition of obstruction is not maintainable at that stage. The Respondent was examined in the case who swore to the allegations in his application. There was no other oral evidence adduced in the case. The court below came to the conclusion, believing the evidence given by the Respondent, that he was in possession as alleged by him and that that possession was not liable to be disturbed in enforcement of the sale certificate obtained by the Petitioner.

Learned Counsel for the Petitioner addressed a rather long argument before me canvassing various positions but only a few of them need be referred to as they are the material ones. He contended that the purchase by the Petitioner being earlier in date to the purchase by the predecessor in interest of the Respondent, he is entitled to preference. In other words, his client gets title to and the right to possession of the properties purchased in preference to a subsequent auction purchaser. The correctness of this proposition of law as an abstract proposition is not controverted by the Respondent. It is, however, mentioned in answer to this that present is not a case of an ordinary prior mortgagee and a subsequent mortgagee each, filing his own suit without impleading the other and the one purchases first, and the other after. The present, it is contended on behalf of the Respondent, is a case of a kanamdar who is a mortgagee of the properties against whom the jenmi enforces his claim for dues by sale of the kanam holding without the knowledge that the kanamdar had dealt with his rights in the properties in favour of Anr. person, in this case in favour of the Petitioner, the hypothecation in whose favour which was enforced in O.S. 1705/05 can only be regarded as a Sub-mortgagee. It is contended that dealings between the mortgagor and a mortgagee even in Courts without the knowledge of a Sub-mortgagee, are good and binding upon the sub-mortgagee. This position again has not been, and perhaps cannot be, controverted on behalf of the petnr. Petitioner''s reply to this is that though this is a kanam holding, the Jenmi and Kudiyan Act of Travancore confers an absolute proprietary right upon the kanamdar. Learned Counsel for the Respondent gives a rejoinder that the Jenmi Kudiyan Act will not apply to the holding in dispute in this case. The provisions of the Jenmi Kudiyan Act appertaining to this matter were not placed before me and I am not, however, in a position, to adjudicate upon this point which does not appear to be necessary for the disposal of the case.

The Petitioner had taken in the written objection filed in the Court below a ground that the application filed by the Respondent was not maintainable at that stage. The Court below does not appear to have considered this objection. In the grounds of revision, there is a ground to the effect that the Court below has not considered all the main points arising in the case but there is no ground taken specifically as to maintainability. Learned Counsel for the Respondent, Mr. Narayana Pillai, who is one of the leaders of the Travancore Bar with a large experience behind him, refers to - Kesavan Namboori v. Skaria 21 TLJ 173 and states that it has been the unquestioned practice in the Travancore Courts to file obstruction petitions in anticipation of applications by the purchasers or decrees-holders for delivery, Mr. Abraham, learned Counsel for the Petitioner, did not contend that such a practice does not obtain, but he, however, stated that it is an erroneous practice. I may also say that in my short experience on the Bench regarding Travancore cases, I have come across very many instances of obstruction petitions filed in anticipation of applications for delivery, they being considered without objection as to maintainability by all the Courts including the High Court. If this has become the practice in the Court it has become the law of the Court. Cursus curiae est lex curiae. (The practice in the Court is the law of the Court). Therefore, it may not be open to objection as the matter is one arising in the Travancore area and before the integration of the States of Travancore and Cochin. But should the question arise, after the integration, and particularly after the extension of the application of the Indian CPC to Part B States as well, whether an application like this by way of obstruction to an anticipated petition for delivery will lie or not, it will be matter for consideration and the said previous practice of the erstwhile Travancore High Court and Courts subordinate thereto may not prevail.

The Petitioner as the first purchaser, it is stated, gets title and the right to be in possession. That right, however, is a right to get only that possession which the judgment-debtor had at the date of sale. If, therefore, at the date of sale, the judgment-debtor was not in actual possession, but a tenant under him was in possession, under the Code of Civil Procedure, the possession that the purchaser is entitled to get is only what is called the symbolical possession, that is, such possession that the judgment-debtor had. He will not be entitled to actual possession. Now, in this case, whether the judgment-debtor was in actual possession or not, does not appear. That there was a tenant of these properties under the judgment-debtor who was in actual possession and that the Respondent got a release from that tenant appears from the allegations and evidence. When was the inception of that tenancy is the real matter for consideration in the case, but which does not appear to have been adverted to in the course of the proceedings. What is contended on behalf of the Petitioner is that the surrender taken by the Respondent was subsequent to the auction sale in O.S. 1705/05 and, therefore, it is bad for ''lis pendens''. It is contended that when that surrender is bad for ''lis pendens'', it cannot operate as a surrender particularly when the Respondent is a subsequent purchaser and, therefore, the surrender can operate only as an assignment of the interests of the lessee.

This contention appears to be sound. Surrender to a person having no title cannot operate as a surrender. It will, however, operate as an assignment and if it does operate as an assignment, it won''t be vitiated by ''lis pendens'' unless the transfer is given by a Defendant in the suit, the proceedings in which operate as ''lis pendens''. It is not contended that the; tenant transferor in this case was a Defendant m O.S. 1705/05. What is contended is only that though he was not a Defendant, he being a tenant under the Defendant, the transfer of the tenant''s rights is also vitiated by ''lis pendens''. The tenant''s right is possessed by him though he derived it from and holds it under a judgment-debtor. If the tenancy was one that arose before the action to enforce the mortgage, it will stand absolutely unaffected by whatever may happen in the proceedings to which he is not a party, though his landlord is. The result is that the proceedings in O.S. 1705/05 will not affect anything done by the tenant if the tenancy arose before the action. It may be noticed that the petition of objection filed by the Petitioner in answer to a claim made by the Respondent in his obstruction petition that his possession is not one that can be disturbed in execution of the sale certificate, what was stated was merely that the transfer by the tenant is bad for ''lis pendens''. That contention as is now clarified in the argument addressed before me means that a transfer made by a tenant who was holding the property under a Defendant would also be affected by the principle of ''lis pendens'' even though the tenancy arose before the action, if the transfer was after the action. This contention cannot be accepted. It cannot but be said that more attention should have been bestowed upon the real question in the case as to whether who was in possession at the time of the sale, whether the judgment-debtor, or a tenant whose tenancy commenced before the suit. Though specific attention does not appear to have been riveted upon such material as there was available in the Court below, it came to the conclusion in favour of the Respondent as regards his possession and in the absence of any contention that the very tendency itself is vitiated by ''lis pendens'', I consider that the order sought to be revised must be upheld, especially because this order does not adjudicate the rights of parties finally. It is one which is final only subject to the result of a suit which the aggrieved party is competent and entitled to file.

I do not, therefore, find my way to interfering with the order passed by the Court below notwithstanding the fact that there could have been a better approach to the real point of controversy in the case. The want of that approach cannot wholly be said to be the fault of the Court below. Neither the party appears to have riveted attention upon the precise question which really arises in these proceedings. If parties who are interested in the proceedings do not place before the Court the precise question for consideration and adduce such evidence and furnish such material for disposal of the question properly, and for that reason the decision is not thoroughly satisfactory, that will not be a ground, at any rate for invoking the extra-ordinary jurisdiction of the High Court in revision. The revision petition should, therefore, be dismissed but in the circumstances without costs.