Sadasivam Pillai vs Smt. S. Rajalakshmi Ammal and others

Venkatadri, J.—This second appeal arises out of a suit filed by the first respondent herein Rajalakshmi Ammal for a declaration of her title to the suit properties and to set aside the summary order in E.A. 2030 of 1959 filed by the appellant (first defendant) and for possession of the suit house. The facts of the case that are necessary for the disposal of this appeal are as follows. One Kullammal was the original owner of the vacant site and the superstructure thereon and she settled this property on her son, the second defendant, under Exhibit A-1 dated 2nd March, 1951. The second defendant mortgaged it to the plaintiff for a sum of Rs. 4000 on 24th March, 1951. On the said mortgage the first respondent herein filed O.S. No. 100 of 1957 on the file of the District Munsif of Erode, impleading there the first defendant herein because he happened to be a lessee of the first defendant. In that suit the first defendant contended that the superstructure belonged to him and therefore he was not a necessary party and the trial Court struck off his name from the suit. A preliminary decree and final decree were passed. In pursuance of the final decree, passed in the mortgage suit, the plaintiff herein filed E.P. No. 1237 of 1958, brought the hypotheca to sale and she herself became the purchaser. During the course of the execution proceedings, the first defendant herein filed an objection petition stating that she (the plaintiff herein) cannot take possession of the superstructure. His objection petition was allowed. In Order to clear the title in regard to the superstructure, the plaintiff has filed the present suit for a declaration that she is entitled to the superstructure also. In regard to the mortgage decree obtained against the second defendant the question arose whether the superstructure belongs to the mortgagor or whether the mortgagee is entitled to the superstructure also. The Courts below gave a concurrent finding that the superstructure belongs to the mortgagee and as such she is entitled to possession of the superstructure in regard to the hypotheca. It is against this decision that the present second appeal has been filed. In this second appeal it is contended that even if there is a concurrent finding that the superstructure belongs to the mortgagor and as such the plaintiff is entitled to the superstructure as well, the lower Court committed an error in not going into the question of the maintainability of the suit. His case is that when his objection petition was allowed and decided against the plaintiff she had to file an appeal under S. 47 C.P.C. and as she did not file an appeal the suit itself is not maintainable. To support his proposition of law he cited Mahalinga Pathar Vs. Santhanagopalakrishnan, . The head note in that case clearly shows that a party who was exonerated from the suit may still be considered a party to the suit and any order passed on an objection raised by such a party in execution would be open to appeal and a Suit was not maintainable. When this was brought to the notice of the other side, the Learned Counsel for the respondent brought out the distinction, namely, there the order was passed by consent of parties and he was exonerated from the suit. I do not think the principle of that case will apply to the facts of the present case. On the other hand, there is a direct decision of a Full Bench in Abdul Sac v. Sundara Mudaliar 59 M.L.J. 932 = 54 Mad. 81 = 32 L.W. 836 in which it was held that where certain defendants are held to have been improperly impleaded as parties to a suit and the suit is on that ground dismissed against them, they are not defendants against whom a suit has been dismissed as is provided by S. 47 C.P.C. and in such a case it is proper for the executing Court to consider not only the decree but also the judgment and the pleadings and sea whether upon the facts of the case the parties, although the suit was dismissed against them, really remained parties to the suit. This decision was followed by Veeraswami J. in Kailasa Reddiar v. Ponnammal (1961) 2 M.L.J. 119. I do not think that the present appellant was a party to the suit as contemplated in Sec. 47 C.P.C. He was wrongly impleaded as a party. Subsequently he was removed. Therefore, he cannot now say that the suit is not maintainable. Therefore this second appeal is dismissed.

No order as to costs. No leave.