S. Subba Rao vs Mangavalli Venkataseshacharlu and Another

This appeal is preferred against the order of the learned District Judge of Cuddappah confirming the order of the learned District Munsiff of

Cuddappah made in E.A. No. 435 of 1943. The second respondent in the execution application is the appellant in this Court.

The Co-operative Society, Cuddappah, obtained an award decree, dated 6th June, 1930, in respect of a mortgage debt against one Ambakka.

That decree was assigned by the Co-operative Society to one Subba Rao, the appellant in this appeal on 12th February, 1931. On the 25th

November, 1933, Ambakka conveyed all the properties belonging to her to one Muneyya. On the 16th January, 1935, Ambakka died. In E.P.

No. 1935, Subba Rao executed the award decree against Muneyya and the properties mortgaged was sold. On 12th July, 1937, Muneyya

executed a mortgage in favour of one Seshacharlu for a sum of Rs. 600 borrowed by him for financing a litigation. This mortgage was created

against a house belonging to Ambakka and sold by her to Muneyya under the aforesaid sale deed but not comprised in the mortgage in favour of

the Co-operative Society. Subba Rao filed E.P. No. 1340 of 1939 against Muneyya impleading him in the execution petition as a person who

covenanted under the sale deed from Ambakka to pay a; debt due to the Co-operative Society. The house was sold and was purchased by

Subba Rao on the 4th November, 1940. He obtained possession of the house on 10th November, 1940. Meanwhile on the 10th February, 1940,

Seshacharlu filed a suit O.S. No. 47 of 1940 in the District Munsiff''s Court of Cuddappah on foot of the mortgage in his favour executed by

Muneyya and obtained a preliminary and then a final decree in that suit. The final decree is dated the 12th July, 1940, and in execution of that

decree Seshacharlu purchased the house himself''in the sale held on 21st October, 1940, which was confirmed on 25th November, 1940. He then

filed E.A. No. 435 of 1943 and impleaded as parties to that application Muneyya as the first respondent and Subba Rao as the second

respondent. He sought the permission of the Court in that application to implead Subba Rao as a party and prayed for possession of the scheduled

property, i.e., the property purchased by him in pursuance of the mortgage decree. This was resisted by Subba Rao on the ground that the petition

was not maintainable. The application, it may be stated here, was made under Sections 47, 146 and 151 and Order 21, Rule 95 of the Civil

Procedure Code.

The main contention of Subba Rao in the Courts below and here is that Section 47 of the Code has no application as himself and Seshacharlu

(the first respondent in this appeal) derived title through Muneyya, the common judgment-debtor. This contention, which is repeated here, was

rejected by the Courts below. If there is not a further complication of the fact that there was a Court sale in favour of Subba Rao, and delivery of

possession to him through Court during the pendency of the mortgage suit instituted by Seshacharlu, probably there might be some force in the

contention urged on behalf of the appellant. As the purchase by Subba Rao was during the pendency of the mortgage suit, though the transfer was

not a voluntary transfer, the principle of Section 52 of the Transfer of Property Act applies and this position has been established in this Court and

is not challenged before me. In a case parallel to the present case, the Privy Council in a decision reported in Parameswari Debi v. Ramcharan

(1937) 2 M.L.J. 359 had to consider the applicability of Section 47 of the Code. There, during the pendency of a suit on mortgage, the appellant

obtained a usufructuary mortgage in his favour from the mortgagor and came into possession of the property. Subsequently, during the pendency of

the mortgage suit, the equity of redemption of the mortgagor in the property was sold in execution of a mortgage decree and was purchased by the

appellant. The mortgagee decree-holder''s purchased the property in execution of their decree and obtained symbolical possession from the

judgment-debtors. They then applied for actual possession against the appellant who resisted the application on the ground that Section 47 of the

Code had no application and that the remedy of the mortgagee-decree-holder-purchasers, if any, was by way of a separate suit. It was also

contended that the appellant was not a party to the decree which was sought to be executed against him and there/ore Section 47 of the Code had

no application. In repelling this contention, their Lordships of the Judicial Committee observed at page 361 as follows:

It is then said that the appellant was not a party to the decree which is sought to be executed against him. But he took the property from the

defendant pendente lite and must be treated as his representative in interest. He is bound by the result of the decree. If he had not obtained

possession of the property from the defendant, the latter would have been required to deliver it to the. plaintiffs. And the mere circumstance that he

got possession from the defendant in pursuance of a transfer, which was invalid as against the plaintiffs, cannot detract from their rights under the

decree�.The dispute between the appellant and the decree-holders related to the execution of the decree, and, as he was the representative of

the judgment-debtor, the Court executing the decree had jurisdiction u/s 47 of the CPC to determine that dispute. The Court of first instance did

determine it, and, as all the requirements of the section were satisfied, the decree-holders were entitled to appeal against that decision to the High

Court.

In view of this decision it is unnecessary to consider the effect of the Full Bench decision in Thondam Annamalai Mudali Vs. Tiruttani Ramasami

Mudali and Others, and the other cases relied on by Mr. Ramaswami Aiyar, the learned advocate for the appellant, as in those decisions there was

no necessity to consider the principle of lis pendens and its applicability. I therefore hold that the decision of the Courts below is correct. This

appeal fails and is dismissed with costs of the first respondent.

(Leave to appeal is refused.)