Veerappa Chetty vs Ramaswamy Chetty and Another

The facts of the case are not in dispute. The 2nd defendant obtained a decree against the 1st defendant in the Temporary Suborinate Judge''s

Court at Ramnad on the 8th of April 1913. It was transferred for execution to the permanent Sub-Court and an application for attachment was

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

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

an order of attachment on the 25th of June 1913. The property was sold on the 10th November 1913 and the 2nd defendant became the

purchaser. The sale was confirmed on the 11th of December 1913. The judgment-debtor, the 1st defendant, did not object to the confirmation.

Plaintiff, on the other hand, instituted a suit against the 1st defendant in the Sub-Court at Sivaganga and obtained a decree in December 1912.

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

The present suit is for possession, The Subordinate Judge has given a decree to the plaintiff. The 2nd defendant has appealed. Three main

contentions were put forward by Mr. A. Krislinaswamier. It was first contended that by the transfer of territorial jurisdiction, the Ramnad Court

does not cease to have jurisdiction, as at the time of application for attachment it had jurisdiction. The recent Full Bench ruling in Seeni Nadan alias

Virakumaru Nadan Vs. Muthusami Pillai and Others, 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 Aiyar referred to the analogy of cases in which it was held that the conferring of appellate jurisdiction on a new Court

would not deprive the suitor to whom the right of preferring appeal had accrued already from filing the appeal in the old appellate tribunal. vide

Colonial Sugar Refining Co. v. Irving (1905) A.C. 369. Reference was also made to Subbaraya Mudaliar v. Rakki ILR (1908) M. 140 and

Ramakrishna Chetty v. Subbaraya Aiyar ILR (1912) M. 101 in which it was held 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 this 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 CPC to which the

learned Vakil for the respondent drew our attention shows that the legislature conferred the power of dealing with Immovable property only to the

Court which had territorial jurisdiction over it. This was the view taken in Subbiah Naicker v. Ramanathan Chettiar ILR (1914) M. 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 Full Bench judgment in Seeni Nadan alias Virakumaru Nadan Vs. Muthusami Pillai and Others, and

the other two learned Judges have expressly re-affirmed this view. I am not satisfied that it was 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 2nd branch of the argument which Mr. Krishnaswami Aiyar 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. It was not open to him to question the title. The plaintiff who

purchased the property 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 Moopan v. Subramaniam Chetty (1912) 24 M.L.J. 78. 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 the purchaser obtained under the certificate

of sale. Reliance was also placed on Sections 18 & 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 Sub-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 Debendranath Sanyal v. Ramacumar Ghosh ILR (1881) C. 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 in which the public are entitled to bid. Under the 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 incumbrances effected

by him subsequent to the attachment of the property sold. In Richards v. Johnston (1859) 4 H.& N. 6601 which has been approved and followed

by very eminent judges in Richards v. Jenkins (1883) 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.D. 280 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 Mahommed Mozuffer Hossein v. Kishori Mohan Roy ILR (1895)

C 909 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 assessing party. On the mortgage a decree was obtained. During execution a person who obtained a decree against the husband put

forward the contentionthat 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, persons 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 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 of Richards v. Jonston (1859) 4. H.& N. 660 and Richards v. Jenkins (1889)

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 Poresharnath Mukerjee v Anathnath Deb (1889) 18 Q.B.D. 451. The contrary view would attribute to the

Judicial Committee a departure from Debendranath Sanyal v. Ramhvmar Ghose ILR (1882) C 265 and from the high authority of the learned Lord

justices who decided Richards v. Jenkins (1889) 18 Q.B.D. 451. I do not see sufficient ground for reading Mahommed Mazuffer Hossein v.

Kishori Mohan Roy ILR (1895) C. 901 in that way. Mr. Justice Mukerjee, for whose opinion I have very great regard, takes the view that

Mahommed Mazuffer Hossein v. Kishori Mohan Roy ILR (1895) C. 901 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 (1906) C. 877 and Parsidh Narain Singh v. Janaki Singh (1907) 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. Mirja Abdul Samed Seraji (1909) Cri.L.J 150 should

not be extended to cases where the judgmentd-ebtor is sought to be affected by the rule of procedure relating to jurisdiction. I may illustrate my

position by reference to the latest decision of the Judicial Committee in Sree Rajah Satrucherla v. Maharaja of Vizianagaram (1919) 37 M.LJ. 11.

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 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 provisions in that behalf. That provision must be

regarded as an exception to the general rule that orders passec 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

piepared to extend the estoppel to them. Mr. Krishnaswami Aiyar seemed 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. Venkatrama Sastriar, sought to distinguish Mahomed Mazuffer Hossein v. Kishori Mohan Roy ILR (1895) C.909 and Debendranath Sen

v. Mirja Abdul Samed Seraji (1909) Cri.L.J 150 on the ground that there was an attachment at the instance of his client before the sale to the 2nd

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

sale following it can really affect the title of the 2nd defendant, if otherwise valid Moreover the attachment u/s 64 affects private alienation and not

compulsory sales.

Mr. Krishnaswami Aiyar contended lastly, that as the plaintiff applied for rateable distribution, he is estopped from peaching the 2nd

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 o 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.