Marimuthammal and Another vs Thandarayanaicken and Others

Chandra Reddi, J.—The only point that arise for consideration in this appeal is whether the suit is barred under Order 21, Rule 95, Civil

P.C. The facts that give rise to this question are the following:

The plaintiff who purchased two items of property at a Court auction held in execution of the decree in O.S. No. 1677 of 1926 on the file of the

Salem District Munsiff''s Court on a mortgage dated 24-6-1925 brought the suit out of which this second appeal arises for recovering the said two

items of property from defendants 2 and 3. But we are now concerned only with Item No. 2 of the property as the respondent has given up his

claim to item No. 1 of the suit property. One of the contentions raised on behalf of the defendants was that the plaintiff''s remedy by way of suit is

barred by reason of the provisions of Order 21, Rule 95 , Civil P. C. Both the Courts below held against the defendants on this question. It looks

to me that the decision of the lower appellate Court is correct and that the contention of the appellants-defendants is untenable.

The position that a suit does lie by a stranger purchaser for recovery of properties from a trespasser cannot be disputed having regard to the

decision in ''Sundara lyer v. Thiagaraja Plllai'', 50 Mad. L.J. 183. Further at p. 910 of Mullah''s Civil Procedure Code'' the following passage

occurs : ""It may be observed that a purchaser at a Court auction is not bound to apply for possession under Rule 95 of Order 21. He may at his

option bring a regular suit for possession the period of limitation for the suit being 12 years as stated above. The remedies by way of application

and that by way of suit are concurrent."" In support of this statement of law reliance is placed on the decision ''Kishori Mohun v. Chunder Nath'',

14 Cal 644. Even apart from these authorities it looks to me that the contention of the appellants has no force at all. It must be observed that

Order 21, Rule 95, Civil P. C., has no application to the facts of the case having regard to the fact that the appellants are neither the judgment-

debtors nor persons who claim title created by the judgment-debtor but only trespassers. It follows that the contention of the appellants based

upon the provisions of Order 21, Rule 95, Civil P.C., must be rejected. Though an attempt was made to argue another point, namely, that the suit

is also barred u/s 47, Civil P.C., it was ultimately given up and not pressed before me having regard to decided cases.

For the aforesaid reasons the second appeal falls and is dismissed with costs. No leave.