Guna Durga Prasad Rao and Another vs D.V. Krishna Rao and Others

Shearer, J.—This appeal arises out of an order of the learned District Judge of Ganjam dismissing an application made under Order 21, Rule 97, Civil P.C. No appeal lies against such an order. It is, however, contended by the appellants that the learned District Judge, by reason of the provisions contained in Order 21, Rule 102, had no jurisdiction to make the order, and ought to have dealt with the matter u/s 47 of the Code. The property in respect of which the application was made was purchased by the respondent at a sale in execution of a decree for money which he had obtained against one Goona Seethayamma.

The sale took place on 14th March 1938, and, subsequently, on 29th November 1938, the respondent was put in possession of the property. Now, some considerable time previously, in 1981, Goona Seethayamma and her four sons had been impleaded as defendants in a partition suit instituted by her step-sons who are the present appellants. This suit was dismissed by the trial Court in 1935, but on appeal it was decreed by the High Court of Madras in 1939. The property with which we are now concerned was included in the schedules to the plaint in the partition suit as part of the property of the joint family of the plaintiffs and the defendants and finally it was allotted to the plaintiffs. When, however, the plaintiffs attempted to take possession of it in execution of their decree, they were resisted by the respondent, and, therefore, made an application under Order 21, Rule 97. It is clear that the respondent was a person other than the judgment-debtor who Maimed in good faith to be in possession of the property on his own account, and the learned District Judge was, therefore; bound under Order 21, Rule 99, to make an order dismissing the application, unless the case was one to which Order 21, Rule 102 applied.

In repelling the contention that Order 21, Order 102 applied, the learned District Judge relied on an observation of Pazl Ali J., as he then was, in Harihar Prasad v. Lakhan Lal AIR 1935 Pat. 230, that "Order 21, Rule 102, does not in terms apply to an involuntary sale." I respectfully concur in this observation. It seems to me quite impossible to say that the respondent is "a person to whom the judgment-debtor-has transferred the property after the institution of the suit in which the decree was passed." The .property has not been transferred to the respondent by Goona Seethayamma; it has been transferred by the Court which executed the decree against the will of Goona Seethayamma, and, for all we know, in spite of her utmost endeavours to prevent it. Moreover, the interest which the respondent acquired in the property as a result of the sale in execution of his decree was not precisely the interest which he would have acquired if Goona Seethayamma had sold the property to him by private treaty. For the appellants, much reliance was placed in this Court, as also in the Court below on a decision of a Judge of the Calcutta High Court, sitting singly, in Bepin Chandra Gorain Vs. Hem Chandra Mukherjee and Another, . That" learned Judge there observed:

Admittedly, the general doctrine, of lis pendens u/s 52, T.P. Act, has been extended by judicial decision to involuntary alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by Rule 102.

With the greatest, respect, it seems to me that the conclusion which the learned Judge has drawn does, not follow necessarily, or at all, from the premises. Moreover, it has escaped the notice of the learned, Judge that Order 21, Rule 102 of the present Code corresponds to Section 333 of the Code of 1882. Now, in 1882 the doctrine of lis pedens had not yet been extended by judicial decision to transfers in invitum. It may perhaps be desirable that Order 21, Rule 102, should be made applicable to sales in execution of decrees, and, more particularly, to sales in execution of mortgage decrees, but it is for the Legislature or the High Courts to amend the rule. It is not for the Courts to strain the language used in the rule and to attempt to put on it an interpretation which, in my opinion, it cannot reasonably bear. The other decision on which the learned Advocate-General, for the appellants, relied was a decision of a Divisional Bench of the Madras High Court: Kanakasabhai Mudaliar v. Rajagopal Naidu AIR 1918 Mad. 673. The observation made in that decision, which again was largely obiter dictum, was that "Rule 102...lays down that nothing in Rule 101 shall be applicable to a transferee lite pendente." It is to be observed that the sale in that case was a sale in execution of a mortgage and not a money decree. Now, although at such a sale the property of the judgment-debtor is sold by the Court against his will or without his consent, it has to be remembered that when he executed the original mortgage he voluntarily transferred an interest in the property. I doubt myself if the expression ''property'' in Rule 102 can be construed as meaning "an interest in the property" but the point is perhaps arguable.

The learned District Judge was, therefore, in my opinion, correct in relying, as he did, on the decision of Fazl Ali J., as he then was, and dismissing the application under Order 21, Rule 99. In that view of the matter, this appeal is not maintainable and must be dismissed with costs. It is, however, desirable that I should deal briefly with an argument which was strongly pressed by the learned Advocate-General for the appellants. The learned Advocate-General contended that the respondent was a representative of the judgment debtor and that, in consequence, the learned District Judge should have dealt with the application as if it had been application u/s 47 of the Code. I do not doubt that it would have been open to the appellants to make an application u/s 47, and if they had done so, it would have been for the learned District Judge to determine whether or not the respondent was the representative of the judgment-debtor Goona Seethayamma.

The learned Advocate-General invited us to say that the respondent was in fact her representative and was bound by the decree in the partition suit. Speaking for myself, however, I think the matter is by no means free from doubt, and that in any case we are not in a position to determine it when neither the pleadings in the partition suit nor the issues which were raised are before us. As this appeal is not maintainable, we also cannot direct the learned District Judge to treat the application as if it was an application u/s 47 of the Code unless we act in exercise of our revisional jurisdiction. I can see no good reason for taking so unusual a course.

The contention of the-respondent is apparently that the property which he purchased in execution of his decree against Goona Seethayamma was her stridhan property and was not part of the property of the joint family and was, therefore, not liable to be partitioned.

The appellants to whom that property has been allotted at the partition can institute a suit asking for a declaration of their title and for recovery of possession. If such a suit is instituted, it will not, I imagine, be open to the respondent to contend that the suit is barred inasmuch as an application could and ought to have been made to the Court executing the decree in the partition suit u/s 47.

In this connection, I may be permitted to refer to a decision of a Divisional Bench of the Bombay High Court which appears to me to be directly in point Basappa Budappa v. Bhimangowda Shiddanogowda AIR 1928 Bom. 65. The hearing fee is assessed at two gold mohurs.

Pande, J.

I agree that the appeal should be dismissed.