Kanagasabhai Pathar vs Poornathammal

Rajamannar, J.—The point of law which arises in this revision petition does not appear to be covered by authority and must be decided on

the language of the relevant statutory provisions. The respondent to this petition obtained a decree against one Apparasu Pathar in O.S. No. 382

of 1943 in the Court of the District Munsiff of Chidambaram for delivery of possession of a portion of a house. It is common ground that the

original owner of the house was one Saradambal Ammal who died sometime before the institution of the suit. The respondent claimed title to the

property as the purchaser from one Thaiyanayaki Ammal, the mother of the said Saradambal Ammal. The suit was based on a rent deed executed

by the defendant Apparasu and after contest was decreed in the respondent''s favour. In execution of the decree, the respondent obtained

possession. The petitioner in this Court thereupon filed an application under Order 21, Rule 200 of the CPC for delivery of possession alleging that

he had been in possession of the property in his own right and had been wrongly dispossessed in the execution proceedings taken by the

respondent. He claimed title from one Marimuthu Ammal who was alleged to be the legatee of the property under a will executed by the deceased

Saradambal. The learned District Munsiff of Chidambaram dismissed his application and the petitioner seeks to revise the order of dismissal.

The learned District Munsiff held on a consideration of the evidence that the petitioner was in possession of the house at the time of the delivery

to the respondent in execution of his decree. He however held that the petitioner''s right was affected by the rule of lis pendens contained in Section

52 of the Transfer of Property Act and he was therefore not entitled to any relief. He arrived at this finding on the following facts:

The suit for recovery of possession was filed by the respondent on 13th November, 1943. The sale deed under which the petitioner claims title

to the property from Marimuthu Ammal is dated 24th November, 1943, i.e., subsequent to the institution of the respondent''s suit. The petitioner''s

case in the lower Court was that after his purchase he gave notice to the judgment-debtor in the respondent''s suit to quit and deliver possession of

the portion in his occupation and that the judgment-debtor thereupon quit the premises. The learned District Munsiff held that as the judgment-

debtor handed over possession in pursuance of the notice to quit issued by the petitioner when the suit was pending the petitioner''s right was

affected by the rule of lis pendens and would not avail against the respondent decree-holder.

The relevant provisions of the Code are contained in Order 21, Rules 100, 101 and 102. The petitioner is certainly a person, other than the

judgment-debtor who has been dispossessed of Immovable property by the holder of a decree for the possession of such property and was

therefore entitled to present an application under Order 21, Rule 200 of the Code. Under Rule 201, where the Court is satisfied that the applicant

was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the

applicant be put into possession of the property If this rule stood alone, there can be no doubt whatever that the applicant was entitled to be put

back in possession of the property because he was certainly in possession of the property on his own account claiming, as he did, to be the owner

of the property by virtue of the sale deed which he obtained from Marimuthu Ammal. He was certainly not in possession on account of the

judgment-debtor. But Rule 202 is to the following effect:

Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of Immovable property by a

person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the

dispossession of any such person.

The learned District Munsiff held that by quitting the house and surrendering vacant possession to the petitioner, the judgment-debtor cannot

strictly be said to have "" transferred "" the property within the meaning of this rule. But he thought that Section 52 of the Transfer of Property Act

applied to the facts of the case. That section is in the following terms:

During the pendency in any Court....of any suit or proceeding which is not collusive and in which any right to Immovable property is directly and

specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of

any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may

impose.

In his view though the judgment-debtor could not be said to have ""transferred"" the property, he must certainly be held to have "" dealt with "" the

property so as to affect the rights of the decree-holder.

Mr. S. Ramachandra Aiyar, learned advocate for the petitioner, contends that Section 52 of the Transfer of Property Act has no application to

his petition under Order 21, Rule 200,Civil Procedure Code, which has to be decided on the terms of Order 21, Rules 101 and 102 of the Code

of Civil Procedure. I agree with his contention. The Court in dealing with an application under Order 21, Rule 200, Civil Procedure Code, is not

concerned with the determination of the title to the property which is the subject-matter of the application. It is only concerned with the factum of

possession at the time when the applicant is alleged to have been dispossessed and the nature of such possession, viz., whether it was on his own

account or on account of a person other than the judgment-debtor. Section 52 of the Transfer of Property Act on the other hand lays down a rule

of substantive law affecting title to property. Section 52 of the Transfer of Property Act in terms prohibits a transfer or otherwise dealing with the

property in suit by any party to the suit. The result would be that any person claiming to derive title from a party to the suit under a transaction

during the pendency of the suit cannot escape from the prohibition contained in that section. This position is not seriously contested by Mr.

Viswanatha Sastri, learned advocate for the respondent. All that he urged was that the principle underlying that section would be applicable even

to an application under Order 21, Rule 200, Civil Procedure Code. In my opinion to a certain extent the principle underlying this section has been

embodied in Order 21, Rule 202, CPC and it is not permissible to travel beyond that provision and rely upon the analogy of Section 52 of the

Transfer of Property Act. In this view it is unnecessary for me to decide whether the act of the judgment-debtor surrendering possession of the

property to the petitioner would fall within the scope of the words ""otherwise dealt with "".

The only question therefore which remains is whether Rule 202 applies to the facts of this case. Has the judgment-debtor "" transferred "" the

property to the petitioner after the institution of the respondent''s suit. He has certainly not executed any conveyance to the petitioner. Nor has he

purported to transfer or assign any title to the property to the petitioner. The only act which he has done is to quit and deliver possession of the

property to the petitioner, after receipt of a notice from him to quit. In my opinion, having regard to the scope of the groups of sections beginning

with Order 21, Rule 95, Civil Procedure Code, the words "" transferred the property "" in Rule 202 should be understood in a wide sense as to

include both "" transfer of title "" as well as "" transfer of possession "". I would even go further and say that primarily it refers to transfer of possession

whether accompanied by a purported transfer of title or not. In this view I do not agree with the lower Court in thinking that it cannot be said that

the judgment-debtor has transferred the property within the meaning of Rule 202. The judgment-debtor, in surrendering possession to the

petitioner, must be deemed to have "" transferred "" the property to him within the meaning of this rule. The petitioner would therefore be not entitled

to any relief under Rule 201.

One of the decisions relied upon by the learned advocate for the petitioner reported in Mussamat Fatima Khanam v. Raza Ali Khan I.L.R.

(1926) Luck. 269 appears really to be in support of my view. It was there held that where a transferee pendente lite pays off a prior usufructuary

mortgage and enters into possession of the property and resists the decree-holder in obtaining possession, he must be treated, in relation to his

possession, as a purchaser from the possessory mortgagee. The transfer in that case must be deemed to have been a transfer of possession from

the mortgagee and not from the judgment-debtor, the mortgagor, though the transfer of title was from the judgment-debtor. The learned advocate

for the petitioner complained that there is no specific evidence that the judgment-debtor voluntarily relinquished possession in his favour. But there

is no indication to the contrary even in the affidavit filed by the petitioner in reply to the additional counter affidavit of the respondent raising the plea

of lis pendens. The judgment-debtor''s attitude in the suit itself also suggests that he must have voluntarily surrendered possession to the petitioner.

In this view the application of the petitioner under Order 21, Rule 200, Civil Procedure Code, must fail and was rightly dismissed by the lower

Court.

Mr. Ramachandra Aiyar points out that the respondent was entitled under the decree only to possession of the portion of the house occupied by

the judgment-debtor but the petitioner has been evicted from the entire house. If this be true, the petitioner is not without remedy but certainly the

remedy under Order 21, Rule 200, Civil Procedure Code, will not be open to him in respect of the portion not covered by the decree. It would be

a case of excessive execution, i.e., delivery to the decree-holder of property in excess of that to which he was entitled under the decree. In such

cases it has been held that the judgment-debtor can get relief u/s 47 of the Code of Civil Procedure. But I doubt if a stranger to the suit like the

petitioner could invoke the provisions of Section 47 of the CPC in his aid. His remedy might only be a suit based on a cause of action of trespass

under colour of a decree. In no event can his remedy be under Order 21, Rule 200, Civil Procedure Code, because that rule applies only to re-

delivery of possession of property delivered to the decree-holder in execution of the decree.

In the result the civil revision petition is dismissed with costs.