Veerappa Chetty vs Ramasami Chetty and Another

Seshagiri Ayyar, J.—The facts of the case are not; in dispute. The second defendant obtained a decree against the first defendant in the

Temporary Subordinate Judge''s Court at Ramnad on 8th April 1913. It was transferred for execution to the permanent Sub-Court and an

application for attachment was made to that Court on 18th April 1913. On 21st April 1913, the taluk in which the property sought to be attached

was situated, was transferred from the jurisdiction of the Ramnad Sub-Court to that of the Sivaganga Sub-Court. Even after this transfer, the

Ramnad Court issued an order of attachment on 25th June 1913. The property was sold on 10th November 1913 and the second defendant

became the purchaser. The sale was confirmed on 11th December 1913. The judgment debtor, the first defendant, did not object to the

confirmation.

Plaintiff, on the other hand, instituted a suit against the first defendant in the Sub-Court at Sivaganga and obtained a decree in December 1912.

He attached the same properties on 17th September 1913. The sale was on 30th June 1914 and plaintiff became the purchaser. The present suit is

for possession.

The Subordinate Judge has given a decree to the plaintiff. The second defendant has appealed. Three main contentions were put forward by

Mr. A. Krishnaswami Ayyar. It was first contended that by the transfer of the territorial jurisdiction, the Ramnad Court did not cease to have

jurisdiction, as at the time of the application for attachment it had jurisdiction. The recent Full Bench ruling--Seeni Nadan v. Muthusami Pillai ILR

(1919) Mad. 821--that an application to the Court which passed the decree would be one in accordance with law, does not affect the present

case. The permanent Sub-Court of Ramnad which executed the decree was not the Court which passed the decree. Mr. Krishnaswami Ayyar

referred to the analogy of cases in which it was held that the conferring of appellate jurisdiction on a now Court would not deprive the suitors to

whom the right of preferring an appeal had accrued already from filing the appeal in the old appellate tribunal: vide Colonial Sugar Refining

Company v. Irving [1905] A.C. 369. Reference was made to Subbaraya Mudaliyar v. Rakki ILR (1909) Mad. 140 and Ramakrishna Chetti v.

Subbaraya Ayyar (1915) L.R. 38 Mad. 101 in which it was hold that pending suits are not transferred ipso facto by the vesting of jurisdiction in

another Court. I do not think the analogy holds good. The essence of the notification is the deprivation of jurisdiction of one Court and the

conferring of it on another. Therefore the notification must be read as speaking retrospectively and as declaring that from and after its date the first

Court ceased to have jurisdiction over the subject-matter. Moreover, the language of Clause (b) of Section 39 of the Code of Civil Procedure, to

which the learned vakil for the respondent drew our attention, shows that the legislature conferred the power of dealing with Immovable property

only on the Court; which had territorial jurisdiction over it. This was the view taken in Subbiah Naicker v. Ramanathan Chettiar ILR (1914) Mad.

462 and the cases following it. Kasi Viswanathan Chetty Vs. Murugappa Chetty and Another, is an express decision on the point. This view was

not dissented from by the learned Chief Justice in the recent Pull Bench judgment, Seeni Nadan v. Muthusami Pillai ILR (1919) Mad.218 and the

other two learned Judges have expressly re-affirmed this view. I am not satisfied that it is wrong. I am, therefore, of opinion that the Ramnad Court

had no jurisdiction to attach or sell the property on the dates on which it exercised those powers.

I shall now deal with the second branch of the argument which Mr. Krishnaswami Ayyar pressed on us with great force and ability. The

argument was this. Even granting that the Ramnad Court had no jurisdiction, as the attachment, sale and the confirmation of it were effected

without objection by the judgment-debtor he was precluded from disputing the title conveyed. If it was not open to him to question the title, the

plaintiff who purchased the property subsequently took only what the judgment-debtor could have conveyed and that consequently no title passed

to the plaintiff. For the first portion of this contention, reliance was placed on Velayutha Muppan represented by his mother next friend Pichakari

Vs. P.L.V.A. Subramaniam Chetti, . It was held in that case that, at any rate after confirmation of the sale, the judgment-debtor was not entitled to

impeach the title which he obtained under the certificate of sale. Reliance was also placed on Sections 18 and 21 of the Code of Civil Procedure.

Although these sections apply in terms only to suits, it was hardly disputed that execution applications would be within the principle. I am willing

therefore to proceed on the ground that, if the judgment-debtor sued to recover possession on the ground that the sale by the Ramnad Court was

a nullity because of want of jurisdiction, he would be estopped from re-opening the earlier proceedings.

Does that infirmity affect the plaintiff? It was held by the Judicial Committee in Dinendranath Sannial v. Ramkumar Ghose ILR (1881) Cal. 107:

There is a great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. In the former, the price is fixed by

the vendor and purchaser alone: in the latter the sale must be made by public auction conducted by a public officer of which notice must be given

as directed by the Act, and at which the public are entitled to bid. Under the former the purchaser derives title through the vendor and cannot

acquire a better title than that of the vendor. Under the latter, the purchaser notwithstanding he acquires merely the right, title and interest of the

judgment-debtor acquires that title by operation of law, adversely to the judgment debtor and freed from all alienations or encumbrances effected

by him subsequently to the attachment of the property sold in execution.

In Richards v. Johnston (1859) 4 H. & N. 660; 157 E.R., 1000, which was approved and followed by very eminent Judges in Richards v.

Jenkins (1887) 18 Q.B.D. 451, it, was held that an execution-creditor is not affected by the estoppel against the judgment-debtor. The learned

vakil for the appellant drew our attention to a sentence in the judgment of Kay, L.J., in Madell v. Thomas and Co. (1891) 1 Q.B., 230, wherein

the Lord Justice says that the trustee in bankruptcy and an execution-creditor are affected by the same estoppel as the judgment-debtor. The

observation was entirely obiter and the two other Lord Justices who took part in the case did not express concurrence with it. But it was

strenuously argued that the Judicial Committee in Mahomad Mozuffer Hossein v. Kishori Mohun Roy (1895) ILR 22 Cal 909 (P.C.) have

definitely laid down this proposition. As, in my opinion, this case has been the parent of misconceptions which have affected many decisions, I shall

examine it in some detail. In that case the property in suit stood in the name of the wife. To a mortgage by the wife, the husband was an assenting

party. On the mortgage a decree was obtained. During execution, a person who obtained a decree against the husband put forward the contention

that the property really belonged to the husband and that the wife was only a benamidar. Their Lordships held that the decree-holder was

estopped from putting forward such a contention. The principle of the decision was that where title is ostensibly in a person and the real owner

further acknowledges the title as true, persona who seek to prove that the title is illusory will not be permitted to do so. What is denied is the right

to adduce evidence that the prima facie title is not the real title. u/s 41 of the Transfer of Property Act, the legislature has provided that a transfer

from the ostensible owner confers title on the transferee. It is this kind of estoppel, which really confers title, that their Lordships were dealing with.

They should not be understood as having disapproved Richards v. Johnston (1859) 4 H. & N. 660 and Richards v. Jenkins (1887) 18 Q.B.D.

451 and to have laid down that an execution-creditor under all circumstances is estopped by considerations which affect the judgment-debtor. The

same observations apply to Pereshonath Mukerji v. Anathnath Deb (1883) ILR 9 Cal 265 (P.C.), The contrary view would attribute to the

Judicial Committee a departure from the decision in Dinendranath Sannial v. Ramkumar Ghose (1881) ILR 7 Cal., 107 and from the high authority

of the learned Lord Justices who decided Richards v. Jenkins (1887) 18 Q.B.D. 451. I do not see sufficient ground for reading Mahomad

Mozuffer Hossein v. Kishori Mohun Roy (1895) I.L.R.22 Cal 909 (P.C.) in that way. Mr. Justice Mukerji, for whose opinion I have a very great

regard, takes the view that Mahomad Mozuffer Hossein v. Kishori Mohun Roy (1895) ILR 22 Cal. 909 (P.C.) has overruled all previous

pronouncements of the Judicial Committee; with all respect, I am unable to agree. For the same reason I am unable to accept the broad statement

as to estoppel contained in Prayag Raj v. Sidhu Prasad Tewari ILR (1908) Cal. 877 and Parsidh Narain Singh v. Janki Singh (1908) Cri.L.J.,

644.

There is also another aspect of the case which leads to the same conclusion. Whatever may be the general position of an execution creditor in

regard to cases over which a Court has jurisdiction, the principle of Debendranath Sen v. Mirza Abdul Samed Seraji (1909) 10 G.L.J. 150 should

not be expended to cases where the judgment-debtor is sought to be affected by a rule of procedure relating to jurisdiction. I may illustrate my

position by reference to the latest decision of the Judicial Committee in Sri Rajah Satrucherla v. Maharaja of Jeypore ILR (1919) Mad. 821. In

that case the Subordinate Judge of Vizagapatam directed the sale of property not within his jurisdiction. In this Court, on appeal, the procedure

was justified on the principle enunciated in Sections 18 and 21 of the Code of Civil Procedure. The Judicial Committee pointed out that as the

CPC was not applicable to the Agency Tracts where the property was situate the order for sale was ultra vires. It is clear that in the opinion of the

Board, it is not a general rule of law that an order for sale by a Judge, who has no jurisdiction to direct it, can be upheld on the ground that the

judgment-debtor did not oppose it. The justification for such a rule of estoppel is the legislative provision in that behalf. That provision must be

regarded as an exception to the general rule that orders passed without jurisdiction are nullities. Consequently, this exceptional rule of estoppel

should not be extended further than is warranted by the language. The sections do not bind in terms persons like execution-creditors and I am not

prepared to extend the estoppel to them. Mr. Krishnaswami Ayyar seems to suggest that an auction-purchaser would be in a worse position than

an execution-creditor. I see no justification in principle for this contention. Even if it is accepted, the plaintiff does not lose his right as decree-holder

by becoming a purchaser.

Mr. Venkatarama Sastriyar sought to distinguish Mahomad Mozuffer Hossein v. Kishori Mohun Roy (1895) L.L.R. 22 Cal 909 (P.C.) and

Debendranath Sen v. Mirza Abdul Samed Seraji (1909) 10 L.J. 150 on the ground that there was an attachment at the instance of his client before

the sale to the second defendant. I am not prepared to base my decision on this distinction. It has been held that an attachment confers no right and

1 do not think that the sale following on it can really affect the title of the second defendant, if otherwise valid. Moreover an attachment u/s 64

affects private alienations and not compulsory sales.

Mr. Krishnaswami Ayyar contended lastly, that as the plaintiff applied for rateable distribution, he is estopped from impeaching the second

defendant''s title. The facts which led to the application are not clear, as was pointed out by the Subordinate Judge. Even otherwise, the materials

for basing a decision on Section 115 are wanting. There is no question of anybody being misled to his prejudice.

For all these reasons, I am of opinion that the decree of the Subordinate Judge is right and would dismiss the appeal with costs.