Marudanayagam Pillai vs P.K. Venkataswami Naidu and Others

This second appeal is by the first defendant in a suit for setting aside an earlier decree in a mortgage suit. O. S. NO. 634 of 1943 on the file of

the District Munsif, Tiruchirapalli for a declaration that the court sale therein is not valid and binding on the plaintiff and for restraining defendants 1

and 2 in the suit and their men and agents from interfering with the ownership and possession of the plaintiff and his lessee, the third of the suit A

schedule property in the possession of the plaintiff and his lessee, the third defendant in the suit, and for other reliefs. There has been no

appearance before me for the legal representatives of the plaintiff, the plaintiff dying pendente lite. As the record revealed that there has been not

contest between the parties, at the instance of the court, Sri S.V. Jayaraman, advocate, has appeared amicus curiae to represent the case for the

contesting respondents.

The earlier suit O. S. No. 634 of 1943 was instituted by the present appellant as plaintiff on a mortgage executed in favour of the predecessor

of first defendant''s assignor by one Gurunatha Asari. In that suit, the present plaintiff was made the second defendant and the second defendant in

the present suit was impleaded as the fifth defendant. Several items of properties were the subject of the mortgage and with reference to the

impleading of defendants 2 to 6 in that mortgage suit, the plaint therein stated that defendants 2 to 6 were claiming rights in the properties by

subsequent alienations or as tenants and that they were bound by the mortgage claim, that is the present plaintiff was impleaded as a person bound

by the mortgage. He entered appearance in the first instance and filed his written statement wherein he inter alia pleaded that he was an

unnecessary party to the suit as he claimed adversely to the mortgagor and his rights were paramount to that of the mortgagor and mortgagee. It

was set out in his written statement that one Appavu Asari was the original owner of the properties and that the present plaintiff has acquired title to

the property from him bona fide and for valuable consideration prior to devolution of title on the present appellant'' mortgagor from the said

Appavu Asari. Bur after filing his written statement, the present plaintiff remained ex parte and there was a mortgage decree in the suit with the

consent of those parties that had entered appearance.

The subject of the dispute in the present proceedings is in relation to item 3 in that mortgage suit and the decree therein provided that a moiety of

this item 3 and item 1 should be sold for recovery of a sum of Rs. 500. A moiety of item 3 it was stated in the decree belonged to the fifth

defendant therein, the second defendant in the present proceedings. The remaining moiety of item 3 as belonging to the second defendant therein

that is the plaintiff in the present proceedings was to be sold for the recovery a sum of Rs. 400 with subsequent interest. It transpires that the fifth

defendant, the present second defendant, had settled his claim with the mortgagee decree-holder and the mortgagee proceeded in execution

against the remaining moiety. In the present suit, the then second defendant as plaintiff besides challenging the validity of the decree, pleading fraud

and collusion by his then advocate with the mortgagee plaintiff and others, contended that the property he was in possession of and sought to be

proceeded against was not the subject of the mortgage decree. He pleaded that the third item in the mortgage suit O. S. No. 634 of 1943, was

totally different from the property he was in possession of and that it was wrongly sought to be proceeded against as the subject of the mortgage

decree.

In the plaint he has set out two schedules of properties. The A schedule property is stated to be the property which he held as his own and which,

it is stated, was not subject to the mortgage. The B schedule property is the property as described in the mortgage. The B schedule property is the

property as described in the mortgage suit and in the decree that followed. A reference to the Schedules would show that the A Schedule claimed

by the plaintiff is not the subject of the mortgage and the B schedule admittedly the subject of the mortgage bears the same survey number T. S.

1156. The boundaries of both A and B schedules by reference to the survey numbers of the boundary fields are also the same. However, the

descriptive boundaries of the properties differ and apparently differ rather widely. The A schedule property, which the plaintiff claims is not bound

by the mortgage, is stated to be in the northern row of Pudu Theru and the B schedule property the subject of the mortgage decree is shown in the

decree as in the southern row of Pudu Theru. For the plaintiff, certain other discrepancies and differences in the boundaries are relied upon.

The trial court rejected a contention of the plaintiff that the decree in the mortgage suit was a nullity for the reason that it was passed in terms of a

compromise to which the plaintiff was not a party. It must be appreciated that an ex parte decree in terms of prayer in the plaint could have been

more onerous, as the decree could be for the full mortgage amount. The plea of fraud and collusion by his counsel in the earlier suit was found

against. As regards the identity of the properties, it was inter alia pointed out that the present plaintiff had not raised any objection or protest as

regards identity in the execution proceedings though he has taken other objections. The question whether the survey numbers or the descriptive

boundaries which also to a certain extent were vague, should prevail was found in favour of the decree-holder, and the learned District Munsif held

that it was idle on the part of the plaintiff to contend that the property brought to sale and purchased under the mortgage decree was not T.S.

1156, but something different from it. The learned District Munsif further held that the objection raised by the plaintiff to the execution of the decree

was one that would come under S. 47 C.P.C. and that a suit was barred.

On appeal, the learned Subordinate Judge of Tiruchirapalli has reversed this decision and decreed the suit as prayed for. The only question that

was taken up for determination in appeal and appeared to have been pressed before the appellate court was that the A schedule property was not

the property comprised in the mortgage decree. The learned Subordinate Judge has taken the view that the descriptive boundaries should prevail

over the survey numbers. No doubt in the earliest document of the plaintiff the survey number of his property was shown as 1178. However, the

learned Subordinate Judge would hold that T. S. 1156 was plaintiff''s property as identified by the description of its boundaries and that if the

descriptive boundaries of the said property were considered, it did not tally with the corresponding descriptive boundaries of the property, the

subject of the mortgage decree. He therefore held that the A schedule property was different from the mortgaged property. The contention on

behalf of the mortgagee-decree-holder that section 47 C.P.C. was a bar to the maintainability of the suit was overruled. In the result, holding that

the A schedule property in the present plaint is not included in the suit O. S. 634 of 1943, a decree was given in favour of the plaintiff declaring his

title to the property and granting an injunction proceeded against in execution of the mortgage decree.

In the appeal before me by the first defendant in the suit, the decree-holder auction purchaser, it is contended that the learned Subordinate

Judge''s view as to the error in the boundaries is unsustainable and that it is not an invariable rule of law that descriptive boundaries should prevail

over survey numbers. Normally boundaries prevail over numbers but circumstances may demand that the survey numbers should prevail over the

descriptive boundaries particularly when the descriptive boundaries are themselves vague and their identification difficult. There can be no inflexible

principle in this. The question for consideration always is which part of the description is wrong. Where lands are described by numbers and also

by description of the boundaries, and a mortgagor or other grantor owns lands sufficiently answering to one feature and not the other, the other will

be rejected as a misdescription--demonstratio falsa non nost cum de corpore constat. There must be available an adequate and sufficient definition

of what is intended to pass for the principle to apply, and it must fit with certainty to one subject. In my view it is now unnecessary to examine the

correctness or otherwise of the finding of the learned Subordinate Judge on the question of the identity of the property that is the subject of the

decree which it is executing. Learned counsel for the appellant while not conceding, rightly points out that it may be a different matter if what had

been pleaded and put forward in the present suit is a paramount title. The second defendant had been absent and ex parte at the trial, there was no

decision on the paramount title set up and it may be, that if he can sustain the paramount title, which he had pleaded in the the present suit he may

not be bound by the decree. But I fail to see how the question actually raised in the suit is not one relating to the execution, discharge or satisfaction

of the mortgage decree. All questions arising between the parties to the suit, in which the decree was passed or their representatives, and relating

to the execution, discharge or satisfaction of the decree have to be determined by the court executing the decree and not by a separate suit. In the

latest edition (13th Edn.) of Mullah''s Civil Procedure Code, at page 221, it is pointed out that if the decreeholder takes in execution land not

included in the decree or in excess of the decree, the judgment-debtor must apply under S. 47 for the recovery of such land, and a separate suit

for that purpose will not lie. In Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, , the law is thus stated--

The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the

decree. But of course it can. If the executing Court cannot consider this question who can? The executing court has to see that the defendant gives

the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the

court executing the decree can determine it. It is a matter distinctly relating tot he execution discharge or satisfaction of the decree and so, under

Sec. 47 C.P.C. it can only be determined by the court executing the decree."" A decision in a case more or less similar to the matter now before me

is found in Rajendra Prasad and Others Vs. Jai Prakash Pandey and Others, . There also the question was as to the identity of the property the

subject of a mortgage decree. The later suit in that case was by the mortgagors. The mortgagee had earlier brought suit on the mortgagee for sale

of the mortgaged properties. In the plaint in the mortgage suit the property in dispute was described in two schedules, schedule 1 describing the

property with reference to old survey numbers and schedule 2 describing the property with reference to new survey numbers. The suit ended in a

compromise decree, and the dispute as to the identity of the property the subject of the mortgage, in the execution proceedings was raised in the

later suit. The mortgagors claimed in the later suit that a particular area of which possession had been taken in pursuance of the mortgage decree

was not included in the mortgage bond and that the property was wrongly sold in execution and purchased. According to the mortgagors, the

mortgaged property was described correctly in schedule 1 and not in schedule 2, while according to the mortgagees and those claiming under them

the mortgaged lands had been correctly described only in schedule 2. The compromise decree provided for the sale of the properties described in

schedule 2. One of the questions that was mooted in that case was whether there was an estoppel by the consent decree. The learned single Judge

who originally disposed of the case dismissed the suit on the ground of estoppel and by reason of the bar under Sec. 47 C.P.C. On appeal under

the Letters Patent, with reference to the bar under S. 47 C.P.C. the learned Judge observed thus:

In any event, we are satisfied that the suit has been rightly dismissed on the ground that it was barred under the provisions of S. 47 C.P.C. That

was the view taken by Das J. and we consider that this is a correct view. This view is supported by a decision of a Division Bench of the Calcutta

High Court in Sarda Churn Goho v. Prativa Sundari Debi (1936) 40 CWN 428 in which a sale proclamation and notice and been settled in a

number so as to include properties not included in the mortgage and the judgment debtor with full knowledge allowed this property to be sold.

It was held that the judgment-debtor cannot subsequently object that the whole proceeding had been vitiated and therefore, the sale ought to be

set aside and that Sec. 47 operated as a bar. A similar view has been expressed by the Privy Council in Ramchandra Naidu v. Kadiriyasami

Naicker, AIR 1922 PC 252 = (1922) 48 Ind App 155 in which the purchaser in a sale under a mortgage decree had been given a sale certificate

which plainly included certain property and had been put in possession. It was held by the Privy Council that in these circumstances it was not

open to the court in a subsequent sit by the mortgagor''s representative to hold by reference back to the mortgage deed that the property in

question was not sold under the decree.

It was further observed by the Privy Council that under S. 47, C.P.C. the title of a purchaser can be questioned only by a petition in the execution

proceedings, and not by a separate suit, and when a petition was barred by limitation the sale could not be questioned.....

Mr. S.V. Jayaraman appearing amicus curiae drew my attention to Bhagwati Saran Vs. Gargi Din and Another, as the only case which could be

considered as taking a different view. For one thing it is before the decision of the Supreme Court above cited and secondly the learned single

Judge who decided the case appears to proceed on the view that the auction purchaser there was a third party and that it would be a case of

dispute between the judgment debtor and his own representative. This being the legal position I fail to see how an independent suit can be

maintained. The claim of the judgment debtor in the present suit is that the decree cannot be satisfied by proceeding against the A schedule

property and that the A schedule property is not the property which has been the subject of mortgage and the mortgage decree. It is the court that

granted the decree that should properly go into the question whether the decree can be satisfied by proceeding against the A schedule property. In

my view it is a matter relating to execution, discharge and satisfaction of the decree.

No doubt it is open to the court at any stage to convert a suit into an application subject to the question of limitation. It is a discretion vested

with the court whether the suit should be converted into an application. Learned counsel appearing for the appellant submits that in the particular

case, apart from this suit which has been bought up to this court in second appeal concurrently execution proceedings have been going on between

the parties and that the plaintiff in the suit had more than once been objecting to execution not on the ground as to the identity of the properties but

on other grounds. For instance it is stated that on one occasion his only objection was that a specific western half was being brought to sale when

what ought to be brought to sale was his undivided half share and that he succeeded in his objection in Letters Patent Appeal in this court (L. P.

A.). It is to be regretted particularly in this context that the plaintiff has not chosen to enter appearance in this Court Learned counsel Mr. S.V.

Jayaraman appearing amicus curiae has placed before me all relevant materials that are on record and having been taken through the record. I see

no justification for converting the suit into an application at this stage. Thanking learned counsel amicus curiae. I am constrained to set aside the

decree of lower appellate court and restore the decree of the trial court and allow the second appeal. Parties will bear their respective costs

throughout. No leave.

Appeal allowed.