Gulam Rasool Saheb vs Hamida Bibi

Satyanarayana Rao, J.—This is an appeal against the order of the learned District Judge of Trichinopoly, who on appeal from the order of

the Subordinate Judge allowed the plaintiff''s application for removal of obstruction by the appellant in this civil miscellaneous second appeal and

delivery of possession.

The property in dispute and other properties belonged to one Haji Muhammad Ibrahim who died on 17th December, 1912. After his death,

there was a partition on the 15th January, 1916, between the two sons of Haji Muhammad, i.e., Peer Muhammad and Sulaiman and in that

partition Peer Muhammad got for his share the suit property. On the 23rd June, 1921, Peer Muhammad settled the property now in dispute on his

wife Rahiman Bibi. On the nth September, 1922, Rahiman Bibi mortgaged the property to one Sikkandar, the father pf the present appellant. In

the year 1924, a suit for partition was filed by the two -daughters of Haji Muhammad impleading the other sharers as defendants and Rahiman Bibi

was impleaded as the sixth defendant. There was a preliminary decree in that suit on the 15th August, 1929, which was confirmed on appeal on

the 4th April, 1934, and a final decree was passed on the 6th January, 1937. While these partition proceedings were going on, Sikkandar, the

mortgagee, instituted the suit (O.S. No. 135 of 1929) on foot of his mortgage to which he impleaded as parties the original mortgagor and also the

heirs of Haji Muhammad who were subsequently given up as they claimed the suit property by a title paramount. There was a decree, however,

against the mortgagor and ultimately after a final decree, the property was sold and was purchased on the 2nd November, 1932, by the decree-

holder, the mortgagee, and the property was duly delivered to him through Court on the 14th October, 1933.

After all this, the person to whose share the property now in dispute fell in the partition in pursuance of the final decree in O.S. No. 26 of 1925,

applied in E.P. No. 414 of 1944 for delivery of possession. It may be mentioned that in the partition in pursuance of the final decree in the present

suit, the property was not allotted to Rahiman Bibi but to some other sharer. When this Execution Petition No. 414 of 1944 was filed and the

petitioner went to obtain delivery of possession of the property, there was obstruction by the present appellant to the delivery with the result the

respondent filed an application in the Subordinate Judge''s Court for removing the obstruction and for delivery of possession of the property freed

from the obstruction of the appellant. The petition was filed u/s 47, Civil Procedure Code. The present appellant, who was the respondent in the

counter-statement filed by him raised various contentions the chief of which was that the application was not maintainable u/s 47, Civil Procedure

Code, as he was not a party to the suit O.S. No. 26 of 1925, in which a partition decree was passed. This objection was upheld by the learned

Subordinate Judge and the application was dismissed. On appeal the learned District Judge reversed the decision of the Subordinate Judge and

allowed the petition. Hence this second appeal.

The only question that has to be considered in this civil miscellaneous second appeal is whether the application of the respondent u/s 47, Civil

Procedure Code, is maintainable or not. The mortgage in favour of the appellant was long prior to the partition suit and he was not impleaded as a

party to the partition suit. Rahman Bibi alone was impleaded as the sixth defendant in that sure and the purchase by the appellant in pursuance of

his mortgage decree was no doubt during the pendency of the partition proceedings. It was contended on behalf of the respondent here and also in

the courts below that the purchase by the appellant is affected by the doctrine of lis pendens and that therefore he is not entitled to resist the

application of the respondent for delivery of possession. If the mortgage in favour of Sikkandar was during the pendency of the partition suit and

the Court sale was also during the pendency of that suit, no doubt, the principle of the decision of the Privy Council in Parmeshari Din v. Ram

Charan (1937) 2 M.L.J. 359 (P.C.) would apply and the appellant would not be permitted to rely upon the rights which he had acquired under the

Court sale. This Court has consistently taken the view that the doctrine of lis pendens should not be extended to cover an involuntary alienation in

execution of a mortgage decree where the mortgage was prior to the suit relied on as operating to affect the rights of the parties under the

provisions of Section 52 of the Transfer of Property Act. It is needless to refer to all the cases on the point as they have been considered in

Natesan Chettiar v. Subbunarayana Ayyar (1944) 2 M.L.J. 374 : ILR 1945 Mad. 578 The effect of this line of decisions, in my opinion, is really

to date back the rights of the purchaser in execution of the mortgage decree to the date of the mortgage. The foundation of the decision of our

Court in Chinnaswami Padayachi Vs. Darmalinga Padayachi, is the decision of the Calcutta High Court in Har Pershad Lal v. Dal Marian Singh

ILR (1905) Cal. 891 the principle is stated thus:

Much argument has been spent on the doctrine of lis pendens, the plaintiff''s contention being that the defendants having purchased the property

under a decree in a suit instituted subsequent to the suit by his assignor and during the pendency of the suit, are bound by its result. It seems to me,

however, the argument has not much force. The defendants are not purchasers in ordinary execution. They purchased under a decree for sale on

their own mortgage. They took the property in the same condition as it stood at the date of the mortgage to them. Their title, therefore, dated back.

Syed Emam Montozuddeen Muhammad v. Raj Coomar Das (1875) 23 W.R. 187. So did the plaintiff''s title as regards the mortgage to his

assignor. The title of each relates back to the date of the mortgage under which the claim is made.

If this is the correct principle on which the decisions of our Court are based, I find it very difficult to conclude that the auction-purchaser is really a

representative of Rahiman Bibi, the original mortgagor, and that this application falls within Section 47, Civil Procedure Code. In my opinion, the

view taken by the learned Subordinate Judge on this question is correct though he was not justified in dismissing the application altogether. He

ought to have given permission to the petitioner to convert the application into a suit and should have proceeded with the trial of the suit.

The result is, the appeal should be allowed, the orders of the Courts below should be set aside and the application remanded to the first Court

with a liberty to the respondent in this appeal to pay the court-fee payable on this application treating it as a plaint and for converting it into a plaint

within one month after the date of the receipt of the records by the lower Court. The appellant is entitled to his costs throughout. No leave.