Thandavaraya Pillai vs Kuppuswami Udayan

Madhavan Nair, J.—The mortgage-decree-holder-purchaser is the appellant. The appeal arises out of an application under Order 21, Rule

100 made by the respondent for being put into possession as he was wrongfully dispossessed by the decree-holder in execution of his mortgage

decree. The appeal relates only to properties covered by Schedules C and D to the decree. These properties were mortgaged to the decree-

holder by Defendants 3, 4 and 5 who were members of a joint undivided family. Defendants 2 and 6 had sold these properties prior to the

mortgage to the respondent who was the 7th defendant in the suit. It was decided in the mortgage suit that the decree-holder was entitled to get the

shares only of Defendants 3, 4 and 5 in the plaint C and D Schedule properties. As a matter of fact the sale certificate issued to him covered more

than what he was rightly entitled to under the judgment and decree and in execution of that decree he dispossessed the present respondent.

It is clear that under the decree the decree-holder is entitled to dispossess the respondent and so the lower Court allowed the petition filed by

the respondent under Order 21, Rule 100. It is now contended that since the appellant is entitled to a portion of these properties the question

should have been considered by the lower Court as to what portion he was entitled to get, and it is only after such decision that the prayer of the

respondent should have been granted. I agree with the lower Courts in holding that the legitimate scope of the application under Order 21, Rule

100 does not necessitate the consideration of the question now raised by the appellant. I am inclined to think that the appellant has to work out his

rights by a suit for partition. However that might be, it is clear that on the respondent''s application which is of a restricted nature the Courts cannot

go into questions raised by the appellant which would necessitate an enquiry into the equities of the case. I think the lower Court''s order dismissing

the request of the appellant to have his claim for a portion of the property considered in the course of the present application is right and this appeal

should be dismissed with costs.