Subbaraya Goundan vs Samiappa Goundan and Others

Somayya, J.—The second defendant in the suit is the appellant before us. The only point which arises for decision in this second appeal is

whether Section 47, Civil Procedure Code, is a bar to the present suit. The plaintiff-respondent purchased the property in execution of a decree

passed on a fifth mortgage of the property. The suit on the fifth mortgage was commenced on the 6th April, 1927 and the sale at which the plaintiff

became the purchaser was held on the 31st January, 1933. The second defendant purchased the properties in question in execution of a money

decree in O.S. No. 811 of 1925. The purchase was on the 27th September, 1927 and he got into possession sometime thereafter. After the

plaintiff-respondent purchased the property on the 31st January, 1933, he applied in 1934 for delivery of possession. On account of some

obstruction possession was not given. Then he filed E.A. No. 66 of 1937 for delivery of possession and a fresh warrant was issued.. Ex. P-8

contains the various orders passed on E.A. No. 66 of 1937. We need only refer to the note made on the nth June, 1937. It states "" Delivery of

item 1 alone, i.e., S. Nos. 309 and 310 taken by the petitioner."" S. Nos. 309 and 310 are items 2 and 3 in the present suit and they are the only

items which are involved in this second appeal. Ex. P-3 is the delivery receipt passed by the auction-purchaser and it says that possession was

given to him by the amin; but it uses the expression "" common possession."" The corresponding Tamil expression may mean either common or

ordinary or general possession. The trial Court went into the question and held that actual possession was give to the auction-purchaser and that

Section 47 was therefore no bar. On appeal the Subordinate Judge did not record a finding on this question, but held that as the purchase by the

appellant was susbequent to the filing of the suit on the fifth mortgage, the purchase made by the appellant was affected by the doctrine of Us

pendens. He therefore dismissed the appeal. The question whether a separate suit is barred u/s 47 depends upon whether possession was taken in

the execution department and not on the question of Us pendens. The question therefore is whether there was such possession taken by the

plaintiff-respondent as would avoid the bar u/s 47, Civil Procedure Code. We have already referred to E.A. No. 66 of 1937 and to Ex. P-3. Mr.

Venkatesa Aiyangar, learned advocate for the appellant draws our attention to the evidence of the second plaintiff-second respondent, who gave

evidence as P.W. 2. The statement in the chief examination is that he and the first plaintiff got symbolical delivery in 1937. The evidence of the

karnam examined as P.W. 1 is also to that effect. Therefore we shall proceed on the assumption that the plaintiffs got symbolical delivery in 1937.

Thereafter they filed the present suit for actual possession. Even so, we are of opinion that Section 47 is not a bar to the present suit. In Govind v.

Venkata Sastrulu (1907)17 M.L.J. 598 the facts were exactly similar. There, as here, symbolical possession was taken by the plaintiff-decree-

holder-auction-purchaser and he commenced the suit out of which the second appeal arose for actual possession. It was contended that Section

244 of the then Code corresponding to Section 47 of the present Code was a bar. The lower Courts overruled the objection and granted a

decree. In second appeal it was argued that symbolical possession obtained in the case was a mere nullity, that the auction-purchaser was bound

to obtain actual delivery in the execution department and that, therefore, a separate suit was barred by Section 244 of the Code of 1882. Miller

and Munro, JJ., refused to accept this contention and held that a separate suit lay for actual possession. The learned Judges said this:

There is a considerable body of authority in the Calcutta High Court for the position that the delivery of symbolical possession even erroneously

operate to give the person put in possession a fresh cause of action and place judgment-debtor in the position of a trespasser (Vide for instance

Harimohan Shaha v. Baburali I.L.R.(1897) Cal. 715 and the case of Shanker v. Narasingrau I.L.R.(1897) 22 Bom. 667 which is on all fours with

the presnt case). With the view taken in these cases we agree and we are of opinion that the suit was not barred by limitation by Section 244 of the

Civil Procedure Code.

This decision was doubted by Devadoss, J., in Kamayya v. Bhimarasette Paridesi (1924) 49 M.L.J. 303. But that decision was reversed on

appeal by Wallace and Madhavan Nair, JJ., in Dharmala Kamayya (died) and Others Vs. Bhimarasetti Mahalakshmi, . As pointed out by Wallace

and Madhavan Nair, JJ., the question is really concluded by the decision of the Judicial Committee in Thakur Sri Radhakrishna v. Ram Bahadur

(1917) 34 M.L.J. 97. The decision in Govind v. Venkata Sastrulu (1907)17 M.L.J. 598 was referred to by Wallace and Madhavan Nair, JJ. and

so also the conflicting decisions of the various High Courts. We are of opinion that we ought to follow the decision in Govind v. Venkata Sastrulu

(1907)17 M.L.J. 598 and that in Dharmala Kamayya (died) and Others Vs. Bhimarasetti Mahalakshmi, and hold that even if the respondent got

only symbolical possession in 1937, it is tantamount to actual possession so far as the judgment-debtor or his representative is concerned and that,

therefore, Section 47 is not a bar to the present suit.

The second appeal fails and is dismissed with costs.