K.M.M. Palaniappa Chettiar vs Ramaswami Servai and Others

Venkataramana Rao, J.—This is an application to revise an order refusing delivery of possession under Order 21, Rule 95, Civil Procedure

Code. The petitioner filed O.S. No. 31 of 1929 on the file of the Subordinate Judge''s Court of Devakottai on a mortgage executed by one

Muthuswami Servai, father of respondents 1 and 2 herein. The property mortgaged was admittedly joint family property wherein the said

Muthuswami Servai and his sons were interested. In execution of the said decree three items of mortgaged property mentioned in the decree

therein were brought to sale and purchased by the petitioner himself on the 29th June, 1931. After the purchase, the petitioner filed an application

E.A. No. 118 of 1932 for delivery of possession of the said items and obtained delivery of items 2 and 3 but not of item 1. This was in

consequence of an obstruction by respondents 1 and 2. The petitioner then filed an application on the 4th March, 1932, E. A. No. 203 of 1932 on

the file of the Court of the Subordinate Judge of Devakottah for removalof the obstruction. It may be stated that before the petitioner purchased

the said properties, the second respondent, Krishna Servai had filed a suit for partition O.S. No. 153 of 1929 on the file of the District Munsiff''s

Court of Devakottah against his father Muthuswamy Servai and his brother including the first respondent in this case. In the said suit Krishna Servai

impeached the said mortgage on the ground that it was not binding on the family and therefore on respondents 1 and 2 herein. The first respondent

supported Krishna Servai in the said litigation. To the said suit the petitioner was made a party. When E.A. No. 203 of 1932 was taken up for

hearing the said suit was pending. In answer to the said application both the respondents 1 and 2 filed a counter-affidavit stating their objections to

the request made by the petitioner for delivery of possession of the property. In paragraphs 5 and 6 of the counter-affidavit they set out in detail

the nature of their objections. They stated that the properties which were the subject-matter of the mortgage suit O.S. No. 31 of 1929 were the

subject-matter of a suit between the parties in O.S. No. 153 of 1929, that the said suit was pending trial, that as the petitioner purchased the

properties pending the said litigation, his purchase would be affected by the doctrine of lis pendens and he would not be entitled to any relief

inconsistent with the claim of the respondents. They further alleged thus in paragraph 6 of the said affidavit:

In view of the considerations set forth in paragraph 5 supra, this Court trying the same question and giving a decision thereon may result in a

conflict of decisions by two Courts which ought not to be allowed.

They also alleged that in view of the said litigation the question of title should not be gone into. The learned Subordinate Judge who dealt with

the said application did not go into the question whether in view of the fact that the mortgage was by the father the head of the family, it was open

to the defendants to resist the purchaser''s claim for delivery of possession, but as the suit O.S. No. 153 of 1929 was pending he dismissed the

application holding that the petitioner failed to prove that the resistance was caused by the respondents at the instance of the judgment-debtor. This

order was passed on the 9th July, 1932. The said O.S. No. 153 of 1929 was disposed of by the learned District Munsiff of Devakottah on the

19th August, 1932, and so far as the mortgage in favour of the petitioner was concerned the learned Judge dismissed the suit. He held that Krishna

Servai and Ramaswami Servai the respondents 2 and 1 herein, were bound by the mortgage and the auction sale and it was no longer open to

them to recover any portion of the said property. There was an appeal against the said decision and it was confirmed by the learned Subordinate

Judge of Devakottah on the 30th January, 1933. It will thus be seen that within a year from 9th July, 1932, the date on which E.A. No. 203 of

1932 was dismissed there has been a final adjudication by a competent Court declaring and establishing the right of the petitioner to the suit

property and as the learned Subordinate Judge observes in the order which is now sought to be revised:

By virtue of the judgment on appeal it is common ground that the respondents could not claim to be owners of item 1 and the title must be taken to

have passed to the present petitioner auction purchaser.

After the decision of the appellate Court, on the 22nd August, 1933, the petitioner filed the application out of which this revision petition arises,

E.A. No. 977 of 1933 under Order 21, Rule 95 for delivery of possession of item 1. Objection wastaken that as the petitioner did not file a suit

within one year as required by Order 21, Rule 103, Civil Procedure Code, the order on the said petition became conclusive and the petitioner is

not therefore entitled to obtain any relief. This objection prevailed in the Court below. The question is whether the view taken by the lower Court is

sound. Order 21, Rule 103, Civil Procedure Code, provides that:

Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the

right which he claims to the present possession of the property, but, subject to the result of such suit (if any) the order shall be conclusive.

Article II of the Limitation Act provides one year within which the said suit should be brought. Once the year is allowed to elapse, the order

operates as a conclusive adjudication of the right to the property based on the auction purchase. The party against whom the adverse order is

passed under Rule 99 or 101 whether as plaintiff or as defendant is precluded from asserting the said right. Vide B. Krishna Rau v. Lakshmana

Shanbhogue ILR (1881) Mad. 302. The fact that a suit was pending wherein the question of the title to the property was in issue, was held not to

be enough. In Kumar am Uni Achan v. Kunhikrishnan Nair (1923) 75 I.C. 814 an order was passed under Order 21, Rule 101 when a suit

regarding the title to the property was in issue. In the written statement filed in the suit, the defendants against whom the adverse order was passed

under Order 21, Rule 101 did raise the question of title but during the pendency of the suit the defendants failed to institute a suit as required by

Order 21, Rule 103. Thereupon an application was made to raise an additional issue as regards the conclusiveness of the order. An additional

issue was accordingly raised and it was held that the suit not having been filed within a year from the date of the order, the order had become

conclusive and the plaintiff was given a decree. The policy underlying the Rule 103 of Order 21, is to have a speedy settlement of the questions of

title raised in execution sales. But, is the institution of a suit under Order 21, Rule 103, Civil Procedure Code, the only remedy for having the said

order superseded? If the establishment of a right to the property is what is contemplated as necessary to supersede the order and I think it is, then

if the unsuccessful party is able to get his right declared or established within a year, in my opinion, the order must be held to have been superseded

by the later adjudication. Otherwise, in spite of the adjudication in his favour, he must again file a suit to have his right to the property declared

which a competent Court has already declared. As observed by the Privy Council in (1888) L.R. 15 I.A. 211 (Privy Council) it would be an

inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does

not. It seems to me that such a vain litigation is not contemplated by the legislature. The use of the word ""may"" in Rule 103 seems to suggest that

what is contemplated is the establishment of a right and the remedy by a suit is indicated. But what makes the order conclusive is not the failure to

institute a suit but the failure to have the right established. I am therefore of the opinion that it is not obligatory for the petitioner to institute a suit

within a year from the 9th July, 1932, for establishing that the purchase by him in Court auction conferred a valid title to the property against the

respondents. But the next question is, should the petitioner bring a suit for possession or can he file the present application under Order 21, Rule

95, Civil Procedure Code, for delivery of possession of the property? It was found in the said O.S. No. 153 of 1929 that the mortgages on the

footing of which the petitioner obtained a decree were executed for legal necessity and for purposes binding on the family, that the father and the

brother of respondents 1 and 2 fully represented the family in the said transaction and in the mortgage suit and that respondents 1 and 2 are bound

by the decree therein. (Vide paragraphs 39 and 40 of the judgment of the District Munsiff.) Therefore it must be taken that respondents 1 and 2 as

members of the family were also parties to the said mortgage suit O.S. No. 31 of 1929 and decree therein and ""not persons other than the

judgment-debtor"". Prima facie therefore the petitioner will be entitled to apply for possession under Order 21, Rule 95. The question again is, is the

prior application made by him a bar? It will be seen that in E.A. No. 203 of 1932 the learned Subordinate Judge in view of the then pending suit

O.S. No. 153 of 1929 and on the invitation of the respondents refrained from going into the question whether respondents 1 and 2 are not bound

by the decree. The order on that petition must be deemed to have been made subject to the result of the litigation in O.S. No. 153 of 1929 and on

the assumption that the respondents were not bound by the decree. Such an assumption is now found to be untenable in view of the decision in

O.S. No. 153 of 1929. Under such circumstances the present application can be treated as a revival or continuation of the original application

E.A. No. 118 of 1932. The principle stated by Sundaram Chettiar, J., in Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : ILR 56 Mad.

490 would apply to the case:

Where the former execution application was dismissed finally but for some reason (not due to any default or neglect on the part of the applicant)

which subsequently turned out to be untenable, the later execution application would be deemed to be one for a revival of the former one.

Such obstacle the petitioner had in getting delivery of possession now having been removed by virtue of the adjudication of O.S. No. 153 of

1929, the present application is therefore competent and the petitioner is entitled to get delivery of possession from respondents 1 and 2. I

therefore reverse the order of the lower Court and direct delivery of possession being given to the petitioner. In the circumstances I make no order

as to costs.