Sivakami Ammal vs C. Ganpathia Pillai and Another

Rajamannar, J.—The plaintiff is the appellant. The suit was to set aside the order passed by the District Munsif, Madura Town, in E.A. No.

887 of 1943, which was an application filed by the plaintiff under Order 21, Rule 97, Civil P.C. The facts are not in dispute but it is necessary to

state them to appreciate the contention of the parties in this appeal. The subject-matter of the suit is a house in Madura Town which was owned by

defendant 2, who is the husband of the plaintiff. The Madura Municipality sued defendant 2, in O.S. No. 39G of 1034 on the file of the District

Munsit''s Court of Madura Town and obtained a decree. That suit was to enforce the statutory charge in respect of the arrears of property tax for

the years 1931 to 193a. Though the decree was obtained in 1934 the house was brought to sale only on 21-10-1940 and the plaintiff became the

purchaser at the court sale. A sale certificate was issued to her on 28-11-1940. Meanwhile the municipality had brought another suit against

defendant 2, for arrears of property tax for the years 1934 to 1937 and obtained a decree in August 1987. In spite of having obtained this decree

in 1937 the municipality did not mention the existence of the decree or the charge for the arrears of the years covered by the decree either in the

sale proclamation or in execution proceedings in O.S. No. 306 of 1934. Though the plaintiff became the purchaser on 21-10-1940 she did not

succeed in obtaining delivery of the property which was first obstructed by her husband''s brother, and brother''s son and though she obtained an

order for removal of obstruction by them there was again difficulty in obtaining possession. On 15-12-1911 defendant 1, who is the contesting

respondent here became the purchaser of the same property in execution of the decree in O.S. No. 140 of 1937. Though by the date of the

execution proceedings the plaintiff had become the purchaser of the property the municipality as a decree-holder did not choose to bring on record

the plaintiff in the execution proceedings. The sale in favour of defendant 1, was therefore in proceedings of which the plaintiff had no notice. When

the plaintiff eventually filed 13. A. No. 837 of 1943 under Order 21, Rule 97, Civil P.C. there was obstruction by defendant 1 claiming under his

purchase in execution of the decree in O.S. No. 140 of 1937. The plaintiff''s application was dismissed. Hence she was obliged to file the suit out

of which the present second appeal arises to set aside that order and obtain a declaration of title to the property. The learned District Munsif of

Madura decreed the suit. It is not necessary to give the reasons for his decision. On appeal by defendant 1 the learned Subordinate Judge of

Madura reversed the decision of the learned District Munsif and dismissed the suit. The plaintiff has therefore filed the second appeal. Though there

are several grounds raised by the appellant in her memorandum of appeal, I have heard her learned Counsel only on one point, as in my opinion,

the appeal can be disposed of on that point.

It is contended for the appellant that when the suit property was proclaimed for sale in execution of the decree in O.S. No. 396 of 1934 in E. p.

No. 662 of 1939 the municipality who was the decree-holder in that suit failed to notify the decree which they had obtained in O.S. No. 146 of

1937 and the charge they had on the property for the arrears of property tax for the years 1934 to 1937. The fact of this omission is of course not

disputed, but the learned advocate for the appellant contends that on account of the failure to notify the existence of the subsisting charge for

subsequent years the municipality is estopped as against the auction-purchaser, i.e , the plaintiff from asserting any claim to bring the property to

sale in enforcement of the charge for the subsequent years. He relied upon two rulings reported in 15 Madras. In the first of which, Jagannatha v.

Gangl Iteddi (1992) 15 Mad. 303 the plaintiff attached the property and brought it to sale in execution of a decree against defendant 1, and the

other defendants purchased at the court sale, the property. The plaintiff had at the time a mortgage over the same property. But notice of his

mortgage was not given in the execution proceedings. When the plaintiff sued to realise, his security under the mortgage by sale of the premises

which were in the possession of the auction purchasers, it was held by the learned Judges that the plaintiff was estopped from setting up his claim

because he had allowed the auction-purchasers to buy without notice of the mortgage in his favour. The other decision in Kasturi v. Venkata

Chalapathi (1992) 15 Mad. 412 lays down a similar proposition. The learned Judges there say as follows:

The ground of decision is that it was plaintiff who led intending purchasers to believe that the property was offered for sale free of encumbrances,

and that plaintiff by concealing the existence of a lien, of which he was. aware, led the purchaser to pay full value for the property.

The same rule of estoppel, as was enunciated in those two rulings was applied in Giriya Shetti v. Anathamma Shettithi AIR 1927 Mad. 1142 a

case where a lessor sought to proceed against the property which he had brought to sale in execution of a decree obtained by him for arrears of

rent for a particular year for the arrears due thereon for the next year which had fallen due by the time of the sale in execution of the first suit and

which remained unpaid. Curgenven J, held that the existence of the arrears of rent for the subsquent year not having been disclosed in the sale

proclamation the purchaser at the court sale, was not liable to pay that amount. The decision in Kasturi v. Venkata Chalapathi (1992) 15 Mad.

412 was followed.

In the lower Courts reliance appears to have been placed on a decision of the Pull Bench of the Allahabad High Court reported in Lala Nawal

Kishore Vs. Municipal Board, . But they appear to have overlooked the important distinction between the facts of the case before the Allahabad

High Court and the present case. In the Allahabad case in execution of a decree which one ''n'' obtained against ''s'' certain premises owned by ''s''

were brought to sale and sold by public auction and were purchased by the decree-holder himself. At the time the sale took place the house tax

and water rats were in arrears but the purchaser was not aware. It was held that the municipal tax would not cease to be a first charge on the

property merely because they were not notified in the sale proclamation. That was a case where the municipality was held not to have lost its

statutory first charge because of an omission by a third party decree-holder to mention the subsistence of the charge in favour of the municipality in

execution proceedings taken by him. But in the present case it is the Municipal Council which brought to sale the property in execution in the first

instance in O.S. No. 396 of 1934 and it was the same municipality which again brought the property to sale in execution of the subsequent decree

obtained by it. In the Allahabad case there could not be any question of estoppel because it was not the municipality that was guilty of any

omission. The Municipality was not a party to the decree in which the plaintiff became a purchaser.

Learned advocate for the contesting respondents, i.e., defendant 1, in my opinion, did not meet this argument but put forward & contention that

the successive charges in favour of the municipality, can be enforced by successive sales. Learned advocate for the appellant never contested this

nor was it necessary for him to so contest. It is too well established to admit of any doubt that the municipality gets the benefit of successive

charges in respect of arrears of rent for successive periods. Undoubtedly the same property can be brought to sale any number of times for the

arrears for different periods. It is also true that in each case the arrears are the first charge subject to Government revenue. But all this is beside the

point. The real question in this case has not his to do with the rights of the municipality as municipality. The question is whether a party, who obtains

a decree against a property and brings it to sale when on the same property there is a subsisting charge, is bound to notify the existence of that

charge for the benefit of the intending purchasers. The law i3 the same for municipalities as for private persons. A municipality does not cease to be

a decree-holder �because it is a municipality.

It is because this point was overlooked that the learned advocate for the respondent urged another contention justifying the action of the

municipality in not bringing on record in the second suit the plaintiff who had become, to their knowledge, the purchaser in execution of the decree

in O.S. No. 396 of 1934. The learned advocate contended that u/s 88, District Municipalities Act, it was the duty of the transferee to have given

notice to the municipality of the transfer, and if he had not done so the municipality was not bound to bring him on record in subsequent

proceedings. But unfortunately this is mixing up two things viz., the rights and powers of a municipality as a statutory body having specific powers

conferred by the statute and the municipality as a decree-holder. The effect of not giving a notice u/s 88 (1) is stated in the other sub-section of that

Section itself which has no bearing on the question in issue in this case but has only a bearing on the liability for payment of subsequent taxes. The

municipality, in my opinion, was bound both to have notified the existence of the charge and the decree for arrears for subsequent years in the

execution proceedings in O.S. No. 396 of 1934 i.e., in E.P. No. 662 of 1939 as well as to have brought on record the plaintiff in E.P. No. 900 of

1941 in the second suit by which date to its knowledge the plaintiff had become the purchaser of the property which they were bringing to sale.

Not having done either I am clearly of opinion that no act of theirs in the subsequent execution proceedings could adversely affect the title obtained

by the plaintiff by virtue of her purchase in E.P No. 662 of 1939. It was suggested that though there may be an estoppel as against the municipality

there could be no estoppel against the auction-purchaser but no authority has been cited for this position and I do not agree with this contention.

The decree of the lower appellate Court is set aside and the decree of the learned District Munsif of Madura Town is restored with costs

throughout. Leave refused.