Mt. Moti Kuer and Another vs S.M. Usman and Others

Reuben, J.—The question in this appeal is which of three civil court sales of the suit property will prevail.

The sale under which the plaintiffs-appellants claim took place on 19th January 1940. It W83 set aside on 30th April 1940, under Order 21, Rule 90, Civil P.C., but was restored in appeal by an order of the District Judge dated 2lst April 1941. In the meantime, the other two sales had taken place, on 14th May 1940, in favour of defendant 2, and on 16th April 1941, in favour of, defendant 3. The latter sale was confined to an eight-anna share in the property, and was held in execution of an award of the Registrar of the Co-operative Societies, which was framed as an award to enforce a mortgage.

After the third execution sale, defendant 3 filed a partition suit impleading defendant 2 as the principal defendant to obtain his share of the suit property. The suit was dismissed and defendant 3 filed an appeal in this Court, First Appeal No. 178 of 1943. This appeal was com-promised between defendant 2 and defendant 3, and on payment of Rs. 3000 to defendant 3 the appeal was dismissed. The money was paid by defendant 5 who had previously purchased the interest of defendant 2 in the property.

We are not concerned here with the other defendants, defendant 4 the holder of an unexecuted mortgage-decree relating to the property, and defendant la monthly tenant occupying the disputed property.

Defendant 3 has filed a written statement disclaiming all interest in the property. Defendant 2 has not appeared in the suit at all, Defendant 5 actively contested the suit, and has opposed this appeal.

The Courts below have held that the sales in favour of defendant 2 and defendant 3 will prevail over the purchase of the plaintiffs. The Subordinate Judge directed that the plaintiffs would have a charge on the property for the recovery of Rs. 800 paid by them as auction-purchasers of it. This direction has been set aside in appeal by the Additional District Judge, and the suit has been dismissed in its entirety.

A preliminary objection has been raised by Mr. B.N. Ray on behalf of defendant 6 that the appeal has abated as a whole on account of defendant 2 having died and no substitution having been made in his place. As I have mentioned, the interest of defendant 2 has vested in defendant 5 and he has taken no part in the proceedings in this suit. Mr. Ray urges that, defendant 2 having been made a party in the suit, the decree of the Courts below has become final in his favour, and this Court cannot be asked in this appeal to pass an inconsistent decree in favour of the plaintiffs.

The decree of the Subordinate Judge is to the effect that

the plaintiffs are declared to have a charge to the value of Rs. 800 over the disputed house and defendant 5 will be entitled'' to absolute possession of the house subject to the payment of this amount.

The decision of the Additional District Judge removed the declaration about the charge. So it is clear that the decree of the Court below is one in favour of defendant 5 alone. Defendant 2 was therefore, an unnecessary party, and the preliminary objection fails.

Coming to the merits, there ''is no doubt that the appeal must be allowed in respect of the eight-annas share of the property not covered by defendant 3''s purchase. This follows from the provisions of Section 65 and Order 21, Rule 92, Civil P.C., under which the sale in favour of the plaintiffs must be deemed to have vested the title in them from the date when the property was sold. The position is "as if the first sale had never been set aside" (Ram Chunder Sadhu Khan v. Samir Gazi 20 Cal. 25. Hence, the title must be taken to have been vested in the plaintiffs when defendant 2 was executing his decree against the original owners of the property, and defendant 2 did not acquire anything by his purchase.

In coming to their conclusion to the contrary, the Courts below relied on Banke Lal v. Jagat Naratn 22 All. 168. In that case, on somewhat similar facts, Straehey C.J. expressed the view, at th same time admitting to "some doubt," that the later sale would prevail. Banerji J. the other member of the Division Bench, did not share this view, and the case was disposed of on another ground. In considering the opinion of Straehey C.J., we must take into account the very different provisions of the CPC then in force; a sale set aside u/s 311 of that Code could only be restored by a regular suit, and u/s 316, the property sold vested in the purchaser not from the date of the sale but from the date of the sale certificate. Straehey C.J. in the court e of his judgment, observed that different and difficult questions might arise if an appeal lay against the order u/s 311 and the sale was restored in such an appeal. Under the present Code, not only does an appeal lie, but the sale becomes effective, as from the date of the sale.

Mr. Ray has attempted to argue that the sale in favour of defendant 2 must prevail, nevertheless, as it was made in execution of a decree enforcing a charge on the property. The Subordinate Judge has given a valid reason for holding that the decree of defendant 2 was not a charge decree. The decree was obtained in a money suit as the result of a compromise, and purported to create a charge on the property. The charge being for a sum exceeding Rs. 100, the decree should have been registered. As it has not been registered, the decree did not create a charge. (Imperial Bank of India v. Bengal National Bank Ltd. AIR 1931 Cal 228.)

Mr. De, on behalf of the plaintiff-appellants, urges that the position is the same as regards the eight-annas covered by the sale in favour of defendant 3 Under Sub-section (5) of 8, 48 Bihar and Orissa Co-operative Societies Act, 1935, it is expressly provided that the Registrar�s award in enforcement of a mortgage will have the effect of a mortgage decree. The award in question, however, was passed under the previous law, the Co-operative Societies Act, 1912 (Act II [2] of 1912), which contains no such provision. Mr. De contends that under that law the Registrar was not empowered to make an award which would have the effect of a mortgage decree. His contention is supported by Satish Chandra Nag Vs. Silchar Co-operative Town Bank Ltd., . A contrary view was taken by a Division Bench in Laxman v. Dhumori Co-operative-Credit Society AIR 1933 Nag. 211.

I do not think that in this case it is necessary to consider this difficult question. It was raised between defendant 3 and his judgment-debtors in a proceeding u/s 47, Civil P.C., in the execution case in which defendant 8 purchased the property. On 29th July 1939, the executing Court held that the award had the effect of a mortgage decree. This decision was given before plaintiffs'' purchase of the property. It was confirmed in appeal by the District Judge on 22nd June 1940. The question was one within the jurisdiction of the executing Court under Section.47 ,Civil P.C., and the plaintiffs, who acquired their interest in the property during this litigation, are bound by this finding.

On behalf of the appellants, Mr. De contends that, even in this view of the case, his clients are entitled to succeed, as the effect of the compromise in First Appeal No. 178 of 1943 was to wipe out the interest which defendant 3 acquired by his purchase. His argument is based on the supposition that in the partition suit defendant 2 asserted a title to the sixteen-anna interest in the property and that this claim was accepted by the trial Court, whose decree became final as the result of the compromise. Unfortunately, the pleadings and the judgment and decree of the trial Court in the partition suit are not on the record, and we do not know for certain that the partition suit was not dismissed on a ground that did not affect the title of defendant 3.

Even if the supposition is true, however, I do not think the result is altered. The property has come lawfully into the possession of defendant 5, and plaintiffs are trying to get it back from him. In order to succeed they must establish their title to it; they cannot succeed on the weakness of defendant 5''s title. They have established their title to eight-annas interest in the house. If, after the purchase by defendant 3, the plaintiffs stilt continued to have an interest in the remaining eight-annas, for instance the right to redeem it, the wiping out of defendant 3''s interest might have the effect of giving them a right to immediate possession. If, on the contrary, the plaintiffs ceased to have any interest in this eight-anna share after the purchase by defendant 8 it is difficult to see bow any arrangement between defendants 2 and 8''relating to the property could create a title to this share in the plaintiffs.

So, it is necessary to see what the effect of the sale of 16th April 1941 was. According to the decision of the District Judge, the sale was in execution of a mortgage decree. The execution petition was filed on 16th September 1939 Plain-tiffs, therefore, acquired their interest in the property during the pendency of the execution proceeding, and this transaction cannot affect the interest acquired by defendant 3 by the execution sale. Till the sale was confirmed, it was open to the plaintiffs, as it was to the judgment-debtors under the mortgage award, to redeem the property, but once the sale became final there remained no right of redemption: vide Baiju Lal Marwari v. Thakur Prasad AIR 1039 Pat 7. It follows that, after the sale became final, the plaintiffs had no remaining interest in this share, and claim no relief regarding it as a result of the compromise in the High Court.

On the above grounds, I would allow the appeal in part. The plaintiffs-appellants will get a declaration that they are entitled to an eight-anna share in the suit property, and a decree for recovery of possession from defendant 5 to that extent. They will get costs throughout, proportional to their success.

Shearer J.

I agree.