Kopparthi Bala Lingayya vs Sunku Nallayya (deceased) and Others

Horwill, J.—The appellant''s vendor was the mortgagee of a two-thirds share in the suit house. That mortgage had been executed by the

uncles of Subbayya; and what they mortgaged purported to be their two-thirds share of that house. They died soon afterwards and a mortgage suit

was brought against Subbayya as the legal representative of his uncles and in execution of the resultant decree the appellant''s vendor purchased

the property. Subbayya himself had mortgaged the whole of the house to the respondent, purporting to act as manager of the family of himself and

his two uncles. The respondent brought a suit on that mortgage and purchased the house in execution. It was delivered on 13th July, 1930. When

the appellant tried to obtain possession, he was obstructed by the respondent. He sought for the removal of that obstruction, but his petition was

dismissed on the ground that his proper remedy was to file a partition suit, such as was suggested in Mandavalli Rama Rao v. Sivanarayana (1918)

9 L.W. 81 and Nambiamattil Pokker v. Kithakki Kunhi Paihuma ILR (1905) Mad. 296. Instead of taking the matter in appeal, the appellant filed

the suit out of which this second appeal arises. The District Munsiff went into the various contentions raised and found that the mortgage in favour

of the appellant''s vendor was a nominal document not supported by consideration. He also found that the mortgage in favour of the respondent by

Subbayya was valid and binding on his uncles. In appeal, the learned District Judge did not give any finding on these questions of fact, but

dismissed the appeal on two questions of law. He was of opinion that the present suit did not lie because the proceeding between the appellant and

the respondent in execution was one between the parties or their representatives in interest. He was also of opinion that the question in issue had

been already decided against the appellant in a subsequent proceeding to which both were parties.

On the first point, I am of opinion that the learned District Judge was right. If we take the case of two decree-holder auction-purchasers of

property sold in executing two simple money decrees, then the decree-holder in the first execution proceeding, because he purchased the

judgment-debtor''s property, became a representative of the judgment-debtor in the execution of the other decree. The decree-holder auction-

purchaser in the second case, however, retains his status as a decree-holder; and so the contest between him and his rival claimant is a dispute

arising in execution between the decree-holder on the one hand and the representative of the judgment-debtor on the other. This was made clear in

Veyihdrdmuthu Pillai v. Maya Nadar (1919) 38 M.L.J. 32 : ILR Mad. 107 which overruled Thangavelu Mudali v. Mohamed Ibrahim Sahib

(1911) 3 L.W. 377 on which the appellant relies.

Where the decree that is being executed is a mortgage decree, the considerations are somewhat different; but the result is very much the same.

The decree-holder auctjon-purchaser in the second execution is still the decree-holder, while the rights of the other decree-holder auction-

purchaser to possession are based on his purchase of the possessory rights that the judgment-debtor had in the property. It is true that a decree-

holder auction-purchaser in a mortgage suit acquires the rights of the decree-holder as well as those of the judgment-debtor and so to some extent

represents the decree-holder as well as the judgment-debtor; but in opposing the claims of the decree-holder in the second execution he is

certainly putting forward rights acquired by him from the judgment-debtor which would disentitle the decree-holder in the second execution to

proceed against property in which the judgment-debtor had no longer an interest, the whole rights in the land having been acquired by the earlier

decree-holder in his own execution proceedings.

The learned advocate for the appellant relied on M.N. Nagendran Chettiar Vs. Lakshmi Ammal, as showing that all that is decided in execution

is a right to possession and that the right to bring a separate suit on title remains. The case which was being considered in M.N. Nagendran

Chettiar Vs. Lakshmi Ammal, was one in which a prior mortgagee and a subsequent mortgagee brought suits on their mortgages without

impleading each other and they each purchased the property in execution of their own mortgage. In second appeal the learned Judges considered

only the right to possession. They were of opinion that the question between the prior mortgagee and the subsequent mortgagee could only be

decided in a suit for sale, and so they directed that the party who first obtained possession in execution should have possession until dispossessed

in a regular suit for sale. In the present case, however, we are not dealing with a prior mortgagee and a subsequent mortgagee. Moreover, the suit

of the appellant was not a suit for sale but one in ejectment.

The final argument on behalf of the appellant is that as the respondent had opposed any relief being granted in the execution proceedings and

had said that the proper remedy was by way of a separate suit, he is estopped from contending now that the proper remedy was by taking the

matter in appeal against the order of the executing Court. The learned advocate for the appellant relies on Govindappa Vs. Hanumanthappa, as an

authority for this position; but the facts there are not set out and it is not clear on what grounds one of the learned Judges was of opinion that there

was an estoppel. If there is a representation by one of the parties to execution proceedings of certain facts which would necessitate some other

proceedings, and as a result of those facts being accepted the Court passes a certain order, then the party who makes that representation would

be estopped in separate proceedings from stating that those facts were not true. No party can however be estopped because of a legal argument

put forward by his pleader.

In view of the above finding, it is unnecessary to consider the other point oh which the lower appellate Court decided the appeal. The appeal

fails and is dismissed with costs.