Muthusami Mudaly vs Ayyalu Bathadu

The first contention relied upon by the appellant (the 9th defendant) was that by reason of an order (Exhibit I made u/s 280 of the CPC in

proceedings in which one Subraya Pillai was the judgment creditor, Subraya Chetty (the plaintiff''s vendor) was the judgment-debtor, and the

appellant was the claimant, the plaintiff''s suit, as against the appellant (9th defendant) is barred by Section 283 of the Code of Civil Procedure. An

order u/s 280 is conclusive as against the party against whom it is made unless a suit is brought within the prescribed time to establish the right

claimed to the property in dispute. In the present case no suit was brought within the prescribed time. The question therefore is--was the order

allowing the claim of the appellant made u/s 280 an order made against Subraya Chetty (the judgment-debtor) within the meaning of Section 283.

We think the test to apply is that laid down in Guruva v. Subbarayndu ILR 13 M. 366.

The judgment-debtor may be the party against whom an order upon a claim in execution proceedings is made so as to be bound there by.

Whether he is such a party or not must depend upon the facts of each case, i.e., the circumstances in which the order is made and the terms of the

order itself. The case of Guruva v. Subbrayadu ILR 13 M. 366 was decided in 1890, and the attention of the learned judges who decided that

case was apparently not called to the Privy Council decision in the year 1888 in Sardhari Lal v. Ambika Pershad ILR 19 C. 521. But the

observation of their Lordships of the Judicial Committee on which the respondent relied, when read with its context does not seem to us to be

inconsistent with the rule laid down in Guruva v. Subbarayudu. We do not think the judgment of the Full Bench in Damederan Nambudry v.

Parameshwaren Nainbudry 4. M.H.C.R. 472 precludes us from holding, on the facts of this case, that the order in the execution proceedings is not

conclusive as against the plaintiff. The notice which was served on the judgment-creditor was merely to show cause why the sale should not be

stayed until the claim was disposed of (Exhibit VI). There is a conflict of evidence as to whether this notice was in fact served on the judgment-

debtor (Subraya Chetty). There is no doubt, however, that the judgment-debtor attended the proceedings and gave evidence (see Exhibit IV). He

is described as the first witness for the defendant; and in his evidence he describes himself as the defendant. The order recites that the application

was made in the presence of the Vakil for the judgment-creditor and the Vakil for the claimant, but does not recite that it was made in the presence

of the defendant. The order states that the claimant has been in possession, and the defendant has not, but does not refer to the question of title.

The claim was allowed and the judgment creditor was directed to pay the claimant''s costs, Having regard to the inconclusive character of the

evidence as to service of notice on the judgment-debtor, to the fact that it does not appear on the face of the order that the judgment-debtor

appeared as a party at the proceedings in which the order was made and to the fact that the terms of the order are not necessarily inconsistent with

the title being in the judgment-debtor we think the order cannot be said to have been made against the judgment-debtor within the meaning of

Section 283.

The second contention relied on by the appellant was that at the time of the sale by Subraya Chetty to the plaintiff, Subraya had parted with his

interest in the property in question and could confer no title on the plaintiff.

Now under the mortagage deed of August 1890 (N) Subraya had a mortgage interest which, gave him a power of sale. No doubt Subraya

parted with the title-deeds in 1891 to one Sabapathy Chetty. There were various assignments under which the assignees stood in the shoes of

Subraya. In 1895 or 1897 Subraya got back the title-deeds through Raju Naick. His original rights, therefore, revested in him, namely, his rights as

mortgagee with a power of sale which were given him by the instrument of August 1890. We think the plaintiff acquired a good title under the sale

deed of 19th July 1899.

These were the only contentions which were pressed before us. We think the City Civil Court Judge was right.

The appeal is, therefore, dismissed with costs.