Samhut Rai vs Sambaran Rai and Another

Chatterji, J.—This is an appeal from an order passed in the course of a proceeding for execution of a personal decree made under Order 34, Order 6, Civil P.C. The respondent had obtained a mortgage decree in the original mortgage suit in which the appellant was imp leaded as the purchaser of a portion of the mortgaged properties, and he was also a party to the mortgage decree. The mortgaged properties were sold and the sale proceeds being insufficient to satisfy the decree, the respondent obtained a personal decree. It appears that the appellant was a party to the personal decree, but it is conceded before us that his name was entered therein by mistake, and that on no account a personal decree could be passed against him as he was merely a subsequent transferee.

In fact the decree has since been amended. In execution of the personal decree, the respondent attached certain properties. The appellant filed a petition of objection u/s 47, Civil P.C. alleging that he had in execution of a money decree purchased the properties attached and sought to be sold. His case was that he made this purchase at the very execution sale by which he had purchased a portion of the mortgaged property by reason of which he had been imp leaded as a defendant in the mortgage suit. Although the petition of objection filed by the appellant clearly purported to be one u/s 47, the learned Munsif seems to have proceeded on the footing that it was really a claim under Order 21, Rule 58 of the Code. On that footing he discussed the question of possession only, and having come to the finding that the appellant failed to prove his possession, he dismissed the objection.

On appeal, the learned District Judge took the same view. He also proceeded on the assumption that the objection was really a claim under Order 21, Rule 58, and he, having accepted the learned Munsifs finding that the appellant failed to prove his possession, dismissed the appeal. Hence this second appeal. The first, question raised before us is whether the appeal is competent. If the objection filed by the appellant was really a claim under Order 21, Rule 58, it is conceded that no appeal lies. But it is argued by Mr. D.N. Varma for the appellant that the objection really came u/s 47. Here it is necessary to quote the relevant portion of Section 47:

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Upon the wording of this Sub-section, it is clear that in order that a person may be regarded as a party within the meaning of the section, it is not necessary that he should be a party to the decree sought to be executed, but he should be a party to the suit in which that decree was passed. Here, the personal decree was passed in the mortgage suit itself, and it is conceded that the suit did not terminate until the personal decree was passed. That being so the appellant is undoubtedly a party to the suit in which the decree in question was passed.

Mr. B.C. De on behalf of the respondent argues that the appellant not being a necessary party to the suit, so far as the proceeding for the personal decree is concerned, he cannot be deemed to be a party to the suit within the meaning of Section 47. Reliance is placed on the decisions of Madras High Court in Krishnappa Mudaly v. Pariaswamy Mudaly AIR 1918 Mad. 911 . Abdul Sac alias Varusai Mohammad Sahib Vs. Sundara Mudaliar and Another, . In the first case it was held that where a party to a mortgage suit who sets up a title adverse to both the mortgagor and the mortgagee has been exonerated from the suit on the ground of disjointed and his claim has not been adjudicated upon in the suit, he does not remain a party to the suit for the purposes of Section 47, Civil P.C.

In the Full Bench case the question arose whether a defendant in a mortgage suit who A pleaded that he did not derive his title from the mortgagor but independently of him could be said to be a party to the suit within the meaning of Section 47 when the suit had been dismissed against him. Their Lordships held that the effect of the order dismissing the suit against him was that his name was struck off from the record as he was wrongly impleaded in the suit, and that therefore he could not be considered to be a party to the suit within the meaning of Section 47. These cases are obviously distinguishable from the present. Here there has never been any order dismissing the suit e against the appellant. He was a party to the mortgage suit and he remained as such. The mere fact that no personal decree was passed against him cannot amount to an order dismissing the suit against him, much less expunging him from the record of the suit.

On the other hand, Mr. D.N. Varma relies on a decision of a Single Judge of the Madras High Court in Sistla Saraswatamma Vs. Paruvada Maki Naidu and Others, in which the facts were very similar to those before us. On similar facts it was there held that the subsequent purchaser was a party to the suit within the meaning of Section 47, and was therefore entitled to raise an objection u/s 47 when his property was attached in execution of the personal decree. Though it is a decision of a Single Judge, in my view it seems to be correct. I must accordingly hold that the appellant''s objection really came u/s 47, Civil P.C. The appeal, therefore, lies.

The next point argued by Mr. D.N. Varma is that both the Courts below dealt with the question of possession only and did not go into the question of title at all. As I have already indicated, this is so. In fact both the Courts came to the finding that the appellant failed to prove his possession without going into the question of title. Mr. B.C. De points 9 out that in the judgment of the appellate Court reference is made to the fact that the appellant did not produce the sale certificate which is the document of his title. It is true that incidentally reference is made to this fact, but it is only for the purpose of determining the question of possession. As it is a second appeal and the question of title has not been gone into, the case must go back. It may be mentioned that an application was made on behalf of the appellant in this Court to take some additional evidence, which consists of the sale certificate, plaint etc. As we are sending back the case, we need not make any order in this matter. In the result I would allow the appeal, set aside the decision of the Court below and send back the ease to the lower appellate Court for disposal according to law in the light of the observations made above. Costs will abide the result.

Varma J.

I agree.