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Judgment
Alfred Henry Lionel Leach, C.J.—It is not necessary to enter upon a discussion of the merits of this appeal because a preliminary objection
taken by the first respondent must prevail.
On the 30th July, 1930, the third respondent obtained a final decree for sale in a mortgage suit instituted on the original side of this Court against
the second respondent and others. The preliminary decree was for the payment of Rs. 4,64,059-6-9, with interest. The security comprised a
number of immovable properties, some in Madras and some in Salem. As the result of an arrangement between the third respondent (the decree-
holder) and the second respondent (the judgment-debtor)"" all the properties except two lots were released on payment by the second respondent
to the third respondent of their values. On the 20th June, 1934, the unrealized security included 22 acres of land in Mambalam, a suburb of
Madras. The decree-holder had applied for the sale of these lands and a proclamation had been settled, but by consent of the parties the sale was
on that date postponed for a period of three months. It was a condition of the postponement that if the value of the lands was not paid to the
decree-holder within three months they should be sold by him or on his behalf ""by private treaty or otherwise"", without the necessity of a fresh
proclamation of sale. It is the appellant''s case that 120 grounds of the Mambalam property were covered by Paimash No. 611. Eighteen grounds
equal one acre. The second respondent did not pay to the decree-holder the value of the lands within the required period, but the decree-holder
eventually found in the appellant a purchaser for 33 grounds at an acceptable price. It is the appellant''s case that at this stage !the second
respondent conceived the idea of getting the benefit of this area for himself by pretending that the lands did not fall within the Paimash No. 611 but
within Paimash Nos. 606 to 609. All the lands comprised within Paimash Nos. 606 to 609, had been released from the mortgage. Apparently
there are no records in existence from which accurate information can be obtained with regard to the boundaries of lots included in these Paimash
numbers
On the 24th April, 1939, Gentle, J., ordered the second respondent to execute a conveyance to the appellant in respect of the 33 grounds of
land said to be within Paimash No. 611. A conveyance was drawn up and approved by the Court. The boundaries of the 33 grounds were taken
from an original sale deed executed in favour of the second respondent in 1920. In obedience to the order of the Court the second respondent on
the 19th March, 1941, executed the conveyance, but made the following unauthorised addition at the end of the document:
As the lands are not properly identified and as there are no correct survey numbers, I am not selling any lands already released by the Rajah Sahib
and sold by me to others. These sales have been made according to the Corporation identification. 1 have excluded these plots.
This addition to the document was eventually struck out under an order of the Court. On the 24th March, 1941, the second respondent according
to the appellant, conveyed to the first respondent the lands which the appellant had purchased under the conveyance of the 19th March, 1941.
According to the first respondent the two lots of properties are quite distinct, the lands bought by him being within Paimash Nos. 606 to 609.
When the appellant went to take possession of the property which he understood he had purchased he discovered that the first respondent was
already there and he alleges that the first respondent obstructed him. In these circumstances he filed an application under Order 21, Rules 95 and
97 of the CPC asking for an order of the Court directing the removal of the obstruction. This application was also heard by Gentle, J., who came
to the conclusion that the evidence did not establish that the lands purchased by the appellant were the same as those purchased by the first
respondent. He considered that there might have been a mistake. The learned Judge further held that there was no evidence of obstruction. On
these findings he dismissed the application. The appeal is from his order of dismissal. The first respondent says that the appeal does not lie because
the application did not lie. He contends that Order 21, Rule 97, only applies to sales held by the Court in execution of decrees and maintains that
the sale to the appellant was a private one.
The provisions of the Code with regard to the sale of immovable property in execution of a decree are contained in Rules 82 to 103 of Order
R. 83, which gives power to the Court to postpone a sale to enable a judgment-debtor to raise the amount of the decree does not apply to a
decree for sale granted in a mortgage suit. R. 94, states that where a sale of immovable property has become absolute, the Court shall grant a
certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. The rule further provides
that the certificate shall bear the date on which the sale became absolute. Therefore, in a sale held in execution the Code requires the Court to
grant a certificate of sale containing specified particulars . R. 95, says that where the immovable property sold is in the occupancy of the judgment-
debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of
such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order
delivery to be made by putting the purchaser or any person whom he may appoint to receive delivery in possession of the property. R. 97, reads
as follows:
(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is
resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such
resistance or obstruction.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer
the same.
In this case there was no sale certificate and no order for delivery of possession and the question which the Court is called upon to decide is
whether in these circumstances an application under Rule 97, would lie at the instance of the appellant.
The conveyance to the appellant was made in pursuance of an arrangement which was entered into between him and the second and third
respondents outside the Court. It is said by Mr. Venkatarama Sastriar on behalf of the appellant, that parties may choose to adopt their own
procedure for the realisation of the decretal amount and that this does not preclude the operation of Rule 97. In this connection he relies on a
passage from the judgment of the Privy Council in Pisani v. Attorney-General fop Gibraltar (1874) L.R. 5 P.C. A.C. 516 In delivering that
judgment Sir Montague E. Smith, said:
It is true that there was a deviation from the cursus curiae, but the Court had jurisdiction over the subject, and the assumption of the duty of
another tribunal is not involved in the question. Departures from ordinary practice by consent are of every day occurrence; but unless there is an
attempt to give the Court a jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it puts
it entirely out of its course, so that a Court of Appeal cannot properly review the decision such departures have never Been held to deprive either
of the parties of the right of ""appeal.
Mr. Venkatarama Sastriar has, also drawn our attention to the fact that the principle stated in Pisani v. Attorney-General for Gibraltar (1874) L.R.
5 P.C. A.C. 516 was affirmed by their Lordships in (1875) L.R. 2 I.A. 219 (Privy Council)
The facts in Pisani v. Attorney-General for Gibraltar (1874) L.R. 5 P.C. A.C. 516 are in no way analogous to the facts here. The Court is here
concerned with the effect of certain provisions of an Indian statute, The statement of Sir Montague E. Smith in Pisani v. Attorney-General for
Gibraltar (1874) L.R. 5 P.C., on which Mr. Venkatarama Sastriar so much relies cannot legitimately be taken out of its setting and used for the
purpose of interpreting Rule 97 of Order 21, of the Code of Civil Procedure. In my judgment the rule only applies when property has been sold by
the Court in execution proceedings and the requirements of Rule 95, have been fulfilled. The provisions of Rule 17 of Order 19 of the Rules of the
Original Side of this Court lend strong support for this opinion. The rule states that every application under Order 21, Rule 95 of the Code for
possession of immovable property sold in execution of a decree shall be accompanied by a certificate of the Registrar that a sale certificate under
Order 21, Rule 94 of the Code has been granted to and in the name of the person who at the time of the sale was declared to be the purchaser.
The objection now taken by the first respondent was taken by him when the application for the removal of the obstruction was before Gentle, J.
The learned Judge overruled the objection and in doing so accepted the opinion expressed by Sulaiman, J., in Sobha Ram v. Tursi Ram ILR
(1924) All. 693 It was there stated that the provisions of Rule 97 come into operation only when either the deli-very of possession has been
ordered by the Court, or, at any rate, an attempt to obtain possession has been made by the decree-holder out of Court. The decision of the
Allahabad High Court was criticised by Rankin, C.J., in Kiranshashi Dasee v. The Official Assignee of Calcutta ILR (1932) Cal. 8 and the learned
Chief Justice refused to follow it. In the course of his judgment Rankin, C. J., said that the correct way of working Rules 95, 96 and 97 was this:
First of all, to find out whether the applicant claims to be within Rule 95 or Rule 96. If he does not, dismiss his application then and there and leave
him to bring a separate suit. If, on any reasonable right he claims to be under Rule 95 or Rule 96, let him have a general warrant mentioning nothing
about any particular person who is likely to give trouble; wait and see what particular person does give trouble when the officer of the Court comes
to put the applicant into possession; and according to the claim of the person who thus gives trouble, an application may successfully be made
under Rule 97.
The effect of the decision in Kiranshashi Dasee v. The Official Assignee of Calcutta ILR (1932) Cal. 8, is that the obstruction must be to an officer
of the Court before an application can be made under Rule 97. I see no reason to doubt the correctness of this interpretation of the rules, but even
if obstruction to the purchaser himself is sufficient to found an application, it does not, as I have already indicated, lie until the requirements of Rule
95 have been met. Rules 95 and 97 must be read in conjunction. The conditions requisite for the application of Rule 97 were not fulfilled here and
therefore the application did not lie. The appellant''s remedy, assuming that there was unlawful obstruction, was by way of suit, not by way of an
application under Rule 97.
For these reasons I would dismiss the appeal with costs, Rs. 150.
Byers, J.
I respectfully agree.