K. Veerappa Thevar vs S.V. Kandaswamy

N.S. Ramaswami, J.—The Civil Miscellaneous Appeal arises out of an order in execution where the executing court held that the

obstruction by the third party is not liable to be removed. The appellant obtained a mortgage decree, the mortgagor being the first defendant in the

suit. During the pendency of the suit, the equity of redemption had been sold by a private sale and the purchaser thereof came to be impleaded as

the second defendant in the suit. After final decree in the mortgage suit, the hypotheca was brought for sale and after obtaining leave to bid and set

off, the mortgagee-decree-holder purchased the same on 21st February 1973 in the court auction. This sale came to be confirmed on 31st August

1974. Later, he filed execution application for delivery. Kandaswami, who is the respondent in the Civil Miscellaneous Appeal before me, claiming

that he has purchased the property in an earlier court auction, caused obstruction. Hence, the appellant had to file E.A. No. 211 of 1975 on the file

of the Court below for removal of obstruction.

The other Court auction under which Kandaswami claims was in pursuance of a simple money decree in O.S. No. 133 of 1967. There, the

judgment-debtor was the second defendant in the mortgage suit viz., the purchaser of the equity of redemption during the pendency of the

mortgage suit. In pursuance of the money decree obtained against the second defendant herein, the simple money decree-holder caused

attachment of the judgment-debtor''s interest in the hypotheca (he having purchased the equity of redemption earlier) and there was a court sale on

11th March 1969. Kandaswami, the respondent in this Civil Miscellaneous Appeal, was the auction purchaser. The said sale was confirmed on

17th May 1969 and Kandaswami took delivery of the property on 7th October 1969.

It is the above claim that Kandaswami put forward when the mortgagee-decree-holder auction purchaser tried to take delivery of the property.

The executing Court in disposing of E.A. No. 211 of 1975 held that the sale under the mortgage decree having taken place without impleading the

said Kandaswami as a party, would not bind him and that, therefore, the mortgagee-decree-holder has to bring the property to sale afresh. It is in

that view, E.A. No. 211 of 1975 which is one for removal of obstruction came to be dismissed.

It is needless to say that the view taken by the executing court in dismissing E.A. No. 211 of 1975 is untenable. Kandaswami may be the Court

auction purchaser, the sale having taken place as early as in 1969. But, it should be remembered that the judgment-debtor in the money decree in

pursuance of which the said sale came to be held was against the second defendant in the mortgage suit. It was already noticed that he was a

purchaser of the equity of redemption during the pendency of the suit on the mortgage. Undoubtedly, the said private sale itself was his by

pendente lite. Therefore, Kandaswami who is a subsequent auction purchaser which was held to satisfy the money decree against the second

defendant herein, is certainly not a necessary party to be impleaded in the execution proceedings taken out by the mortgage-decree-holder. He

cannot claim any better right than the second defendant himself. Under these circumstances, it is not seriously contended by the learned counsel for

Kandaswami who is the respondent before me, that the order of the court below can be supported.

However, the contention is that, in law, the Civil Miscellaneous Appeal is not maintainable. The argument is that the dispute between the parties

is not one coming under S.47, C.P.C., inasmuch as the appellant as well as the respondent are representatives of one and the same judgment-

debtor and that, therefore, S.47, C.P.C., is not attracted. There are two fallacies in this contention. First of all, the judgment-debtor as far as the

mortgage decree is concerned is the first defendant, he being the mortgagor. The second defendant is only a subsequent purchaser he having

purchased the equity of redemption pendente lite. As far as the money decree under which the respondent claims, the judgment-debtor is the

second defendant. The first defendant has nothing to do with the abovesaid money-decree. Therefore, even assuming that the appellant should be

deemed to be a representative of the judgment-debtor (first defendant) as far as the present proceedings are concerned, that would not debar him

to claim the rights conferred under S.47, C.P.C., for even then it cannot be legitimately contended that the appellant as well as the respondent

claim under one and the same person. Further, the basis of the contention itself is wrong. There is no question of the appellant claiming under any

judgment-debtor in prosecuting the present proceedings. It is no doubt true that he is the auction purchaser, in that he obtained leave to bid and set

off and in execution of his mortgage decree he himself purchased the property. But, that does not mean that in the present proceedings he is only a

representative of the judgment-debtor. Undoubtedly, he is the decree-holder. The mere fact that the decree-holder has been allowed to bid and

set off and accordingly he purchased the property in the court auction does not mean that he ceases to be the decree-holder. Therefore, in no

sense of the term it can be said that the appellant is a representative of the judgment-debtor and, therefore, he is in the same position as the

respondent.

The Full Bench decision reported in Thondam Annamalai Mudali Vs. Tiruttani Ramasami Mudali and Others, , has no relevancy to the facts of

the present case. All that the said decision holds is that both the persons who were litigating the claim under the same judgment-debtor, the matter

would not fall under S.47 of the Code. I have sufficiently pointed out that in the present case, on facts, there is no question of the appellant and the

respondent claiming under one and the same Judgment-debtor. The decision in A. Mallari Rao Vs. Sivagnana Vandayar, is also not applicable to

the facts of this case. There, two auction purchasers, one in pursuance of a mortgage decree and the other in pursuance of a simple money decree,

were third party purchasers. It is not a case of the mortgagee decree-holder himself having purchased the property, as in the present case. All that

the Division Bench points out is that once there is a court sale, whether the sale is in pursuance of a mortgage decree or a simple money decree, a

third party purchaser would represent only the judgment-debtor. In that view it was held that a dispute between two court auction-purchasers, one

in pursuance of a mortgage decree and the other in pursuance of a simple money decree, is not one coming under S.47, C.P.C. That has no

application to the present case because the appellant is not claiming under the judgment debtor for the simple reason that he is the mortgagee-

decree-holder himself.

Subba Rao v. Venkataseshacharlu AIR 1949 Mad. 207; 61 L.W. 535 is a case directly to the point. There, one of the auction-purchasers was

the mortgagee decree-holder while the other was a third party purchaser in pursuance of a money decree. Satyanarayana Rao, J. held that the

dispute between the abovesaid two auction-purchasers would squarely fall under S.47, of the Code. There is, therefore, no difficulty about the

maintainability of the Civil Miscellaneous Appeal. I have already held that on merits the Civil Miscellaneous Appeal has to be allowed.

Accordingly, it is allowed. But, in the circumstances there would be no order as to costs.