Periyaya Ambalam vs Arulappan and Others

Ramesam, J.—A preliminary objection has been taken that an appeal lies u/s 47, Civil P.C., and, therefore, this revision petition does not lie.

Mr. Ramaswami Ayyar who appears for the respondents relies, in support of the preliminary objection, on the Full Bench decision in

Veyindramuthu Pillai. v. Mayanadan [1919] 43 Mad. 107. The principles laid down by the Full Bench were afterwards applied by the referring

Bench to which the case came back, Veindramuthu Pillai v. Mayanadan [1920] 43 Mad. 696. These two cases were also applied by Krishnan, J.,

in Jainulabdin Sahib v. Krishna Chettiar AIR 1921 Mad. 420.

In the Full Bench case certain abstract questions were referred to the Full Bench. While answering those questions the Officiating Chief Justice

observed that, if there is any question relating to the execution, discharge, or satisfaction of the decree, the auction-purchaser is bound to have it

settled u/s 47, even though he cannot be regarded as a legal representative of the decree-holder or judgment-debtor. It is true that in the decision

in Prosanna Kumar Sanyal v. Kali Das Sanyal [1892] 19 Cal. 683 the Privy Council laid down that if there is a question relating to the execution,

discharge or satisfaction of the decree arising between the decree-holder and the judgment-debtor, the mere fact that the auction-purchaser is also

very much interested in the same question does not make it the less a question to be decided u/s 47, and it is this decision that the Officiating Chief

Justice purported to follow. The same decision was referred to and the same view was expressed by Oldfield, J., at p. 125, and Seshagiri Ayyar,

J., at p. 132. If I can respectfully say so, I agree with the view so expressed by the Full Bench, namely, if there is a question relating to the

execution, discharge or satisfaction of a decree arising between the decree-holder and the judgment-debtor, the mere fact that the auction-

purchaser is also interested does not make Section 47 the less applicable. The difficulty arises in the application of this principle. When the case

came back before the Bench, Oldfield and Seshagiri Ayyar, JJ., held that the matter before them fell u/s 47. In the case first there was a money

decree and"" in execution of the decree properties were attached. Before the properties were sold a suit was instituted on a mortgage of the same

properties. While it was pending, the sale in execution of the money decree was effected. Afterwards the mortgage-decree for sale was also

executed. The question arose as to which purchaser was entitled to the possession of the properties. The purchaser, in execution of the mortgage-

decree, attempted to obtain possession and was resisted by the other purchaser; that is, the question arose in the course of the execution

proceedings of the mortgage-decree, the question being whether Section 47 applied to the case. It is clear that the purchaser, in execution of the

money decree, was a representative of the judgment-debtor for the execution proceedings of the mortgage-decree. So far the case presents no

difficulty, but what is the position of the purchaser in execution of the mortgage decree? He was not a representative either of the decree-holder or

of the judgment-debtor. But, without saying that he is a representative of any party, the principle enunciated in Prosanna Kumar Sanyal v. Kalidas

Sanyal [1892] 19 Cal. 683 and repeated by the Full Bench was then applied, and, therefore, it was held that Section 47 was applicable. If the sale

in execution of the money decree was not valid on the ground of lis pendens or for any other reason, then the sale in execution of the mortgage

decree was perfectly valid and ought to prevail. If, for any reason, the sale in execution of the money decree prevailed, the sale in execution of the

mortgage decree falls to the ground and the purchaser would be entitled to a refund of the purchase-money and the decree-holder would have to

take out a fresh execution. Thus the decree-holder was interested in the question raised in the case. No doubt the auction purchaser was also

interested; but this does not matter as laid down in Prosanna Kumar Sanyal v. Kalidas Sanyal [1892] 19 Cal. 683. The final decision was that the

purchase in execution of the money decree was bad for lis pendens. One cannot anticipate the final conclusion on the merits for the purpose of

deciding the question relating to Section 47. The question can only be considered on the footing that the decision on the merits might end either

way. If it ends one way the decree-holder is very seriously affected by it. In my opinion, therefore, the decision in Veyindramuthu Pillai v.

Maijanadan [1920] 43 Mad. 696 is perfectly right and correctly follows the principles laid down by the Full Bench. Against either of these

decisions I have nothing to say.

I next come to the decision in Jainulabdin Saheb v. Krishna Chettiar AIR 1921 Mad. 420. This is a decision of Ayling and Krishnan, JJ.

Krishnan, J., delivered the main judgment. He purported to follow the reasoning in Veyindramuthu Pillai v. Mayanadan [1919] 43 Mad. 107, and

Veyindramuthu Pillai v. Mayanadan [1920] 43 Mad. 696. In this case also there was a mortgage-decree and sale. But it was said that some

properties were wrongly delivered in pursuance of the sale and the application was for the recovery of the properties over-delivered. I find it

difficult to see what over-delivery of property, assuming that the sale itself was correctly carried out, has anything to do with the execution,

discharge or satisfaction of the decree. The decree is properly executed by the sale being carried out as directed by the decree. If in delivery

something more or less was delivered I cannot see how the decree-holder has any interest or could be affected by the rectification of the erroneous

delivery, and the resemblance between that case and the case in Veyindramuthu Pillai v. Mayanadan [1920] 43 Mad. 696 ceases and the principle

of Prosanna Kumar Sanyal v. Kalidas Sanyal [1892] 19 Cal. 683 does not apply. I am inclined, therefore, to dissent from Krishnan J.''s judgment.

But sitting as a single Judge, it is scarcely proper for me to differ from the decision of a Bench and, if necessary, I ought to refer to a Bench. As to

this, I observe: firstly, that the decision can scarcely be described as the decision of a Bench. The other Judge, Ayling, J., though formally he had

not recorded a dissent, expresses his doubt about the correctness of Krishnan, J''s. view. He said: ""I am not prepared to dissent from my learned

brother''s view."" It seems to me that there is really nothing to object to in the principles laid down in Veyindramuthu Pillai v. Mayanadan [1919] 43

Mad. 107. But I think that decision was not applicable to the facts in Jainulabdin Saheb v. Krishna Chettiar AIR 1921 Mad. 420. Secondly, I may

observe that that was a case of a mortgage-decree.

In the case of a mortgage-decree it may be said that the decree itself directs the sale of specific properties, and the question relating to the

delivery of the property sold including the question of over-delivery or under-delivery may be said to be connected with the execution of the

decree by some stretch of imagination. But where the decree is a money decree and properties are attached and then sold, and in delivering the

property to the purchaser there was over-delivery or under-delivery, it cannot be said by any stretch of imagination that the decree-holder was

interested in the question whether there was over-delivery or under-delivery. The decree itself does not relate to the properties. This fact

distinguishes the case before me from the case in Jainulabdin Saheb v. Krishna Chettiar AIR 1921 Mad. 420, and for the purpose of my disposing

of this petition it is unnecessary for me to dissent from that decision, though I am really inclined to do so. I formally distinguish that case from the

one before me on the ground just mentioned. I may here observe that, so early as Kattayat Pethumay v. Raman Menon [1903] 26 Mad. 740,

doubt was expressed whether, proceedings taken by the purchaser to obtain (Possession of the property purchased related to the execution,

discharge or satisfaction of the decree; but where the purchaser was the decree-holder himself, their lordships felt themselves bound by a series of

decisions both in the Calcutta and Madras High Courts, which lay down that proceedings by a decree-holder purchaser for possession must be

regarded as in completion of the decree and, therefore, relate to the execution, discharge or satisfaction of the decree. Where the purchaser is a

different person from the decree-holder it is clear that the application for delivery of the purchased property has nothing to do with the execution or

satisfaction of the decree. It may perhaps be different in the case of a ''mortgage-decree, though even there, if it is merely a question of over-

delivery, I find it difficult to see how it can be. But conceding for a moment that it may be different in the case of a mortgage-decree, in the case of

a money decree, where the auction-purchaser is different from the decree-holder, the application for delivery, in which there is no question about

the validity of the sale and, therefore, no question about the completion of the execution of the decree, cannot have anything to do with the

execution, discharge or satisfaction of the decree, and there in fact, be no question in which the decree-holder can possibly be interested. In such a

case, I do not see how Section 47 applies.

The respondent mentioned to me the decision in Kailash Chandra Tarafdar Vs. Gopal Chandra Poddar, . There again it is a case of an auction

purchaser decree-holder and it is similar to the decision in Kattayat Pethumay v. Raman Menon [1903] 26 Mad. 740. It is significant that one

Judge is dissenting, showing the difficulties one has in considering the application for the delivery of the sold property as relating to the execution of

the decree. But the law must now be regarded as settled that the decree-holder auction purchaser is on a different footing from a purchaser not

being decree-holder. The opposite has never been suggested until the decision of Krishnan, J., Jainulabdin Saheb v. Krishna Chettiar AIR 1921

Mad. 420. On the ground that the decree before me is a money decree, and, therefore, an a fortiori ease, I overrule the preliminary objection.

The defendants are members of a joint family originally owning the property in question. Defendants 9 and 40 represent a third share. Defendant

13 represents a third share and defendant 1 represents a third share. In execution of a decree against them, the whole property was sold and

purchased by the petitioner before me. He is not the decree-holder but a stranger. Within three years after the sale he applied for delivery. The

Court below rejected his application. He files this revision petition.

In the interval between the sale and his application he executed two documents: (1) Ex. 1, agreeing to sell half of the purchased property to

defendant 9 and (2), Ex. 2 conveying the whole of the purchased property to defendant 13 on the ground that the purchase was really on his

behalf. On account of these documents, the Court below dismissed the petition. Defendant 13 (in whose favour Ex. 2 was executed) did not

oppose the application for delivery in the Court below nor does he appear here. Defendant only appears before us and resists the application only

as to the half in which he is interested by reason of Ex. 1. The petitioner is, therefore, entitled to possession of at least a half and, refusing it, is a

material irregularity. Defendant 9 complains that the petitioner and defendant 13 are colluding and intend to harass him by using Ex. 2. Anyhow he

is entitled to resist by reason of his agreement which furnishes him a just cause, Rudramurthi v. Nagi [1910] 8 M.L.T. 388 and Muthia v.

Appasami [1890] 13 Mad. 504. I agree with his last contention provided we know the rights of the parties under Ex. 1.

Now it appears that a suit for specific performance has been filed by defendant 9 on the basis of Ex. 1. The petitioner before me admitted in his

written statement therein that he executed Ex. 1 but did not receive the amount therein. Obviously the rights of the parties depend on the final

decision of that suit.

I, therefore, direct that the petitioner be given joint possession along with defendant 9 (who could not be physically-dispossessed at present) of

half, of the property purchased. As to the other half if the litigation terminates in his favour, he will then be delivered the other half also, i. e., he will

get sole possession of the whole. If it is decided against him, he is not entitled to it.

The petitioner will pay defendant''s costs and get half his costs from the other respondents.