Kasinatha Ayyar and Others vs Uthumansa Rowthan and Others

Moore, J.—Nammalwar Chetti, in whose favour a mortgage had been executed under a document, dated 25th June 1884, with respect to

the properties to which the present appeal relates, brought a suit (Original Suit No. 172 of 1887) on that mortgage and having obtained a decree

brought the property to sale in 1890 and purchased certain of the items of property while others were bought by Saminatha Tevan. Of the several

items of property thus purchased Nos. 8 to 12 were sold by the purchasers to the brother of Uthumansa Rowthan and Ahammad Bowthan, the

first and second respondents, while items 13 and 14 were sold by Nammalwar to Saminatha and by him to the father of the third respondent. The

first, second and the father of the third respondent were duly put in possessions of the items of property purchased by them. In 1897 Kasinatha

Ayyar, the present appellant, brought a suit (No. 267 of 1897 on the file of the District Munsif of Kumbakonam) on a mortgage document, dated

the 8th July 1884, which had been executed in his favour with respect to certain of the properties entered in the mortgage-deed of the 25th June

1884 in favour of Nammalwar. The present first and second respondents were respectively the twelfth and thirteenth defendants in that suit while

the father of the third respondent was the sixteenth defendant. The plaintiff (present appellant) obtained a decree in which it was directed, inter alia,

that the present respondents Nos. 1, 2 and 3 should pay him a sum of over Rs. 1,500 and that in default of payment items 8 to 14 of the property

mentioned in the mortgage document of the 25th June 1884, together with other properties should be sold subject to the prior charge of Rs. 1,500

together with interest on the land under that mortgage. The present appellant having purchased the land at the sale held in execution of the decree

attempted to get possession, but was obstructed by the first, second, third and fourth respondents. He accordingly presented a petition to the

District Munsif under Sections 318 and 335, Civil Procedure Code. The District Munsif having dismissed his petition and the District Judge having

on appeal declined to interfere, this appeal against the appellate order has been preferred here.

In his petition to the District Munsif the appellant stated that the fourth respondent was in possession of a thatched house which belonged to the

defendants Nos. 1 to 7 in Original Suit No. 267 of 1897, but which the fourth respondent was living in under a right obtained from them. It was

alleged that these defendants had instigated the fourth respondent to prevent the appellant getting possession of the house. The fourth respondent

did not appear before the District Munsif and the question as to the house which he is in possession of is not alluded to in his order. The District

Judge held that the order relating to him must; be considered to have been passed u/s 335, Civil Procedure Code, and that there was consequently

no appeal against that order. The District Judge appears to be right. The fourth respondent claims under an alienation made by the defendants Nos.

1 to 7 in Original Suit No. 267 of 1897 after the date of the decree in that suit; As this respondent is not a judgment-debtor and as it has not been

shown that he has resisted the attempt of the appellant to get possession on behalf of any one of the judgment-debtors, it must be held that his case

comes u/s 335 of the CPC and that there was consequently no appeal against the order of the District Munsif in so far as it related to him.

The District Judge has further held that there is no appeal against the order of the District Munsif in so far as it affects respondents Nos. 1, 2 and

I cannot uphold this decision. Even if the plaintiff, the purchaser of the lands, were not the decree-holder, I am decidedly of opinion that,

following the decisions in Prosunno Coomar Sanyal v. Kasi Das Sanyal L.R. 19 IndAp 166 Ishan Chunder Sirkar v. Beni Madhub Sirkar ILR 24

Calc. 62 and Dwar Buksh Sirkar v. Fatik Jali ILR 26 Calc. 250 he must be held to be a representative of the judgment-creditor. In the present

case the purchaser is the decree-holder, the plaintiff in the suit. It would be impossible to hold that having been a party to the decree, he ceased to

be a party because he purchased the property at the sale held in execution. The only point therefore to be decided is whether the question as to

which the parties to the present proceedings are at issue is one relating to the execution, discharge or satisfaction of the decree (Section 244, Civil

Procedure Code). The present application being one by the purchaser of the lands to be put in possession must be held to be a step in aid of

execution (vide Moti Lal v. Makund Singh ILR 19 All. 477 Sariatoolla Holla v. Raj Kumar Boy ILR 27 Calc. 709 and Lakshmanan Chettiar v.

Kannammal ILR 24 Mad. 186 and such being the case the question at issue is clearly one relating to the execution of the decree and, as has

already been pointed out, it is between the parties to the decree. The order of the District Munsif was therefore one passed u/s 244, Civil

Procedure Code, and an appeal lay from it.

On the merits I agree with the District Judge. The direction n the decree in Original Suit No. 308 of 1897 was that the property should be sold

subject to the prior charge on it of the amount due under the mortgage document of the 25th June 1884. It follows that the respondents Nos. 1, 2

and 3 cannot be ousted till the total amount due under that document is paid off. This second appeal is dismissed with costs.

Bhashyam Ayyangab, J.

I am also of the same opinion. The decree-holder in execution of his decree which directed the sale of certain properties (mortgaged to him by

defendants Nos. 1 and 3 and the ancestors of defendants Nos. 2, 4, 5, 6 and 7) subject to a prior charge thereon of Rs. 1,500 (together with

interest) in favour of the twelfth, thirteenth and sixteenth defendants, became the purchaser and now seeks to recover possession of the properties

purchased under Sections 318 and 334, Civil Procedure Code, from the twelfth and thirteenth defendants and the legal representatives of the

sixteenth defendant. The question that is raised is whether, under the terms of the decree, he is entitled to be put into possession without paying the

amount of the prior charge, the defendants dispossessed being left at liberty to ""bring a separate suit for enforcing the charge in their favour. In my

opinion the question thus raised between the decree-holder-purchaser and the said defendants relates, within the meaning of Section 244 (c), Civil

Procedure Code, to the execution or enforcement of the decree against those defendants and the order appealed against is not the less an order

u/s 244, because it is also passed under Sections 318 and 334 neither of which is specified in Section 588.

I am clearly of opinion that, according to the right construction of the decree, the decree-holder-purchaser cannot execute or enforce the decree

against the defendants in possession by ousting them without redeeming the prior charge.