Thathi Naicker vs The Co-operative Society and Others

Rajagopaban, J.—The plaintiff is the assignee-decree-holder in S.C. No. 80 of 1933, the decree in which was passed on 16th March,

1933. In execution of that decree the properties involved in this appeal were attached on 21st June, 1937 and were brought to sale on 4th

January, 1944. The plaintiff decree-holder purchased the property himself and took delivery of the property on 3rd March, 1944. The properties

originally belonged to the second defendant, judgment-debtor.

The first defendant, Co-operative Society, obtained an award to recover a debt due from the second defendant and his wife. The award was

dated 16th June, 1938. That had the force of a decree and in execution of that decree (award) the properties were brought to sale on 12th May,

1941; the first defendant society itself purchased the property. A sale certificate, however, appears to have been applied for only subsequent to the

sale in execution of the decree in S.C. No. 80 of 1933. It was issued to the first defendant on nth March, 1944. By then, the plaintiff had obtained

delivery of the properties. The first defendant applied for re-delivery of the properties in E.A. No. 194 of 1944 and it was allowed; delivery was

effected on 9th July, 1944. Subsequent to that the first defendant sold the properties to the third defendant.

The plaintiff''s claim was that he had acquired title to the properties and that re-delivery of the properties to the first defendant and their present

possession with the third defendant cannot prevail against the superior claims of the plaintiff.

These contentions failed to find acceptance with the Courts below. The plaintiff comes up in second appeal.

Of the three points raised by the learned advocate for the appellant two were not. specifically raised before the lower appellate Court nor

decided there. The learned advocate for the appellant contended:

(1) That the sale by the Co-operative Society was not valid as it infringed the provisions of rule XXII(20)(a) of the rules framed under the Madras

Co-operative Societies Act;

(2) that Section 64, Civil Procedure Code, saved the rights of the plaintiff who had attached the properties earlier in point of time than the sale

under which the first defendant purchased the properties; and

(3) that in any event it was not open to the first defendant to apply under Order 21, Rule 100, Civil Procedure Code, in E.A. No. 194 of 1944,

since he was not the person in possession on the date of delivery, 3rd March, 1944, and could not therefore be deemed to have been

dispossessed on that date by delivery of property to the plaintiff.

It is not open to the plaintiff to bring up in second appeal a question mainly of fact, that the first defendant was not the person in possession on 3rd

March, 1944. It: was not specifically raised in the pleadings; there was no issue, there was no adjudication in the trial Court. Though that ground

was raised in the memorandum of appeal in the lower Court it was not decided in the lower appellate Court and there was nothing to indicate that

the point was even urged before the learned District Judge. It is not open to the plaintiff to bring it up in appeal at this stage.

There is no real substance in the contention that the plaintiff is entitled to invoke Section 64, Civil Procedure Code. What this section provides

for is that a "" private transfer "" of property attached in execution of a decree shall not prevail against the attaching decree-holder. As the learned

advocate for the appellant interpreted Section 64, it would virtually delete the word "" private "" from "" private transfer."" We are here dealing with a

case of a sale under a decree in favour of the plaintiff and a sale under an award in favour of the first defendant, that award itself having the force of

a decree. Such a sale at the instance of the Co-operative Society is not a private transfer within the meaning of Section 64 of the Civil Procedure

Code. An elaborate discussion on this point appears to be unnecessary.

The learned District Judge dealt with the first of the contentions, based upon rule XXII (20)(a) of the rules framed under the Madras Co-

operative Societies Act. I entirely agree with the learned Judge''s reasoning and his conclusions. Merely because there is a specific provision in

Section 63, Civil Procedure Code, Clause (2), that nothing in Section 63 shall be deemed to invalidate any proceeding taken by a Court executing

a decree, it does not mean that a sale held by an inferior Court, in this case, the ""Court"" enforcing the award under the Co-operative Societies Act,

is invalid. The absence of an enabling provision like Section 63(2) of the CPC from Rule 20(a) of the rules framed under the Madras Cooperative

Societies Act does not necessarily imply that a sale in contravention of rule XXII(20)(a) is a nullity. As pointed out by the learned Judge even prior

to the amendment of Section 63, Civil Procedure Code, Courts always held that a sale in contravention of what corresponded to the provisions of

Section 63(1) of the CPC was not a nullity.

The appeal fails and is dismissed with costs.