Vuppulury Somasundaram vs Bhimisetti Kondayya

Venkatasubba Rao, J.—This is a Letters Patent Appeal from the judgment of Krishnan, J. I shall briefly state the facts before discussing the

question of law that arises. Perumal was the owner of the property and he mortgaged it to the defendant. It was then an unenfranchised inam. In

execution of a money decree obtained against Perumal the property was subsequently sold in Court auction. Even then it was an unenfranchised

inam. The plaintiff''s vendor became the purchaser at the Court sale.

This suit has been instituted to redeem the mortgage in favour of the defendant. The defence is that the sale conveys to the plaintiff no title, the

property having been inalienable. The defendant has had to concede that on this hypothesis the mortgage in his favour is also invalid. He, however,

relies upon a sale made to him of the property by Perumal subsequent to the enfranchisement of the property.

These facts cannot be disputed : first, the property was inalienable on the date of the Court sale and consequently no valid title passed to the

plaintiff ; secondly, by reason of the subsequent enfranchisement, Perumal acquired a right which could be transferred and the defendant, haying

then purchased the property from the owner, acquired a good title. Krishnan, J. relying on these facts has dismissed the plaintiff''s suit. in my

opinion, the question is not what are the true facts, but what is the effect of the Court sale; in other words, can Perumal or the defendant who

claims through him plead that the property was in fact inalienable on the date of the Court sale ? If Perumal is precluded from pleading that the land

was inalienable, the defendant who claims through him is equally barred.

It was not disputed before Krishnan, J., that Perumal, the judgment-debtor, was aware of the execution proceedings that culminated in the sale

and the argument apparently proceeded on the footing that though he had knowledge, he did not object to the attachment and sale. The plaintiff''s

learned vakil before us suggested that as a matter of fact Perumal put in a petition objecting to the sale and that his objection was overruled by the

executing Court which thereafter ordered the sale of the property. The petition of Perumal and the order made thereon were not relied on in any of

the Lower Courts or before Krishnan, J. We did not think it necessary to decide whether this additional evidence should be received or not ; for,

in our opinion, it is immaterial whether an objection was put forward which was overruled or whether the judgment-debtor having knowledge of

the proceedings refrained from objecting. I therefore proceed to deal with the case on the footing that Perumal had notice of the proceedings and

had an opportunity to object to the attachment but did not put forward any objection.

The Court sale was held on the assumption that the property could be sold. Is Perumal or his representative, the defendant, now to be permitted

to show that this assumption was wrong and that in fact the property was inalienable ? In my opinion there is a preponderance of authority in

favour of the position that he ought not to be so permitted.

The first case I shall refer to is Sheikh Murullah v. Sheikh Burullah 9 CWN 972 In execution of a decree against the defendant, his property was

sold and a stranger became the purchaser. The latter transferred his right to the plaintiff and he brought the suit for possession. The defendant

raised the objection that the holding was non-transferable by custom and the sale was therefore bad. Mitra, J. held that the defendant could have

objected to the attachment u/s 244 and he not having done so, was precluded from resisting the purchaser after confirmation of the sale. The

learned Judge observes : "" As between the purchaser and himself (the defendant) the title to the property vested in the purchaser on the

confirmation of sale."" Mitra, J. lays emphasis on this aspect, namely, whether the judgment-debtor had knowledge of the execution proceedings

that culminated in the sale. If he had, he would be concluded by the order confirming the sale. If he did not have knowledge, it would be open to

him to object to the sale in subsequent proceedings. Mitra, J. refers to Bhiram All Shaik Shikdar v. Gopi Kanth Shaha ILR (1897) C 355, where

what was apparently a contrary view was taken, namely, that the defendant could resist a purchaser although he had not objected to the

attachment u/s 244. This case was distinguished on the ground that no question was raised in it as to the effect of the knowledge on the part of the

defendant of the execution proceedings leading to the sale. In Durga Charan Mandal y. Kali Prasanna Sarkar ILR (1899) C 727, referred to with

approval by Mitra, J., the learned Judges were of opinion that knowledge on the part of the debtor was decisive of the question. To quote their

words : "" If this question (whether the judgment-debtors w(ere aware of the proceedings or not) be answered in the affirmative, then we are clearly

of opinion that it is not. open to them now to question the propriety of the sale that has already taken place."" The view of Mitra, J., was afiirrned in

fetters Patent Appeal by Maclean, C. J., and Pargiter, J., who expressly followed Durga Charan Mandal v. Kali Prasan-na Sarkar ILR (1899) C

727.

This point was again considered in Dwarkanath Pal v. Tarini Sankar Ray ILR (1907) C 199. The facts were similar to those in Sheikh Murulla

K. v. Sheik Burullah 9 CWN 972 and the learned Judges accepting the law as laid down by Mitra, J., express the view that Bhiram Alt Shaik

Shikdar v. Gopi Kanth Shaha ILR (1897) C 355 had been sufficiently dealt with by that learned Judge in his judgment.

Lala Ram v. Thakur Prasdd ILR (1918) A 680 is also a direct authority on the point. The facts are again similar to those in Sheikh Munillah v.

Sheik Burullah 9 CWN 972 and the same view of the law was again taken. The principle is stated thus : - "" As between him (the judgment-debtor)

and the auction purchaser the sale has become conclusive and the auction purchaser has acquired a vested interest in the property sold."" Here

again the learned Judges advert to the fact that the judgment-debtor was aware of the execution proceedings and did not object.

The principle underlying these four cases, namely, Durga Charan Mandal v. Kali Prasanna Sarkar ILR (1899) C 737, Sheik Murullah v.

Sheikh Bundlah 9 CWN 97a, Dwarkanath Pal v. Tarihi Sankar Ray ILR (1907) C 199 and Lala Ram v. Thakur Prasad ILR (1918) A 680 I may

state thus : Under Order 21, Rule 92, CPC , where no application is made to set aside a sale or where such application is made and disallowed,

the Court is bound to make an order confirming the sale and it thereupon becomes absolute. u/s 65 where property is sold in execution of a decree

and the sale has become absolute, the property vested in the purchaser. If the judgment-debtor objects u/s 47 to the sale and his objection is

overruled he is bound by the decision of the executing Court. If being aware of the (execution proceedings and having an opportunity to object, he

fails to do so, he is likewise bound by the order confirming the sale, in other words, he is, in effect, in either case a party to the order by which the

sale is confirmed equally with the auction purchaser, and he cannot get behind it.

In my opinion, this is the right principle and I am prepared to follow the four cases mentioned above.

I have dealt with cases from which a definite principle is deducible. There are some other rulings which also negative the right of the judgment-

debtor but which state the principle differently. Before discussing these cases, I may refer to Pandurang Balaji v. Krishnaji Govind ILR (1903) B

125, which is identical with the four cases cited above excepting that it makes no reference to the knowledge or want of knowledge ""on the part of

the judgment-debtor although it decided that he was barred from contending in the suit that the sale was bad.

In Gokuhingh Bhikaram v. Risen Singh ILR (1910) B 546 the plaintiff was the purchaser at the Court-sale and the defendants were the

judgment-debtors in the previous suit. They had not objected in the execution proceedings to the attachment and sale. Could they now object ? It

was held, they could not. The reason is given thus:

Though an auction-purchaser at a Court-sale in execution of a decree is not a party to the suit in which the decree was passed and though he is not

a representative of either the decree-holder or the judgment-debtor for the purposes of Section 244, yet if the question raised by the judgment-

debtor as to the legality of the Court-sale is virtually one between the parties to the suit, and it in the decision and result of that question the

auction-purchaser is interested, the judgment-debtor ought not to be allowed to attack the sale in a suit.

The learned Judges seem to think that the result of setting aside the sale would affect a party to the previous suit and the question was thus one

virtually between the parties to that suit and ought to be decided u/s 244. (See p. 552 last sentence).

In Nadamuni Narayana Aiyangar v. Veerabhadra Pillai ILR (1910) M 417 the plaintiff was the judgment-debtor in the previous suit. He sued

to get the sale held in execution of the decree against him, annulled. Wallis, J., as he then was, observes that the plaintiff is barred from bringing the

suit not by reason of Section 244 but by reason of general grounds of policy which underlie that section. Krishnaswami Aiyar, J. states? the

principle in a different way, for, according to him, the only mode in which the sale can be impeached is by an application to the executing Court to

set aside the sale. In his opinion"", unless a sale is set aside in the proceedings between the parties, the suit against the purchaser is not maintainable.

With great respect, I am unable to understand the ground of the decision of Krishnaswami Aiyar, J.

It is, however, unnecessary to pursue this point further, as, in my opinion, as I have stated the right principle is that which underlies the decision

in Sheikh Murullah v. Sheikh Bundlah 9 CWN 972 and the other three cases which I have mentioned above.

In Venkataramanachariar v. Meenakshisundaram Aiyar (1908) 19 MLJ 1 a Bench of this Court approve of Bhiram Ali Shaik Shikdar v. Gopi

Kanth Shaha ILR (1897) C 355. But I am not prepared to say that the learned Judges have taken a different view from that taken in the later

Calcutta cases to which I have referred. In my opinion, it must be taken that Bhiram Ali Shark Shikdar v. Gopi Kanth.Shaha ILR (1897) C 355:

was understood by this Bench in the way it was by Mitra, J., in Sheikh Murtillah v. Sheikh Burullah 9 CWN 972.

It was strenuously contended by the learned vakil for the respondent that whereas the judgment-debtor as a plaintiff cannot impeach the sale,

he may as a defendant resist the suit. This distinction is artificial and I can find no justification for it. The case that was most relied on for this

proposition Bhiram Ali Shaik Shikdar, v. Gopi Kanth Shaha ILR (1897) C 355 cannot any longer be regarded an authority in support of it. It is

true that Miller, J., in Thathu Naick v. Kondu Reddi ILR (1908) M 242 accepts this proposition, but on the facts of the case his observations

seem to be obiter, for, Sankaran Nair, J., the third Judge to whom the case was referred, on a difference of opinion between Miller and Abdur

Rahim, JJ., points out at p. 252 that the judgment-debtors were not aware before the confirmation of the sale of the facts which were sought to be

relied on to invalidate the sale. There is nothing in this case to suggest that the principle on which Sheikh Murullah v. Sheikh Burullah 9 CWN 972

rests is not sound.

It was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff''s suit should on that ground be dismissed. I

cannot follow this contention. As I have said, we are not here concerned with the true facts of the case but only with the result of certain

proceedings. Is the defendant to be permitted to plead that the land was inalienable at the time of the Court-sale ? The effect of the order

confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property

can be sold. In this view, it is unnecessary to consider Raja of Vizianagram v. Danti-vada Chelliah ILR (1904) M 84, Sannamma v. Radhabhayi

ILR (1917) M 418 Naza-bari Sahu v. Siva Korithan Naidu (1913) MWN 415 and other cases cited on this point.

The appeal must therefore be allowed.

According to our judgment the plaintiff has become the owner of the property and this assumes that the defendant is not. The District Munsif

though purporting to decide Issue I has really decided Issue II. We have now reversed his decision on that Issue. Issues I, III and IV remain to be

decided. The decision on the first issue is reversed and the suit is remanded to the District Munsif''s Court for disposal in regard to the other Issues.

The defendant will pay the costs incurred by the plaintiff in the first Court, the Lower Appellate Court and in this Court.

There will be refund of Court-fee on the memorandum of appeal in this Court and in the Lower Appellate Court.

I have had the advantage of reading the judgment of my learned brother with which I agree. The facts of the case have been clearly stated in

that judgment and they need not be re-stated here. The plaintiff is a transferee from the auction purchaser and his suit is to redeem a mortgage held

by the defendant and subject to which the property was sold at the auction. The defendant pleads that the property being an inam land is

inalienable and therefore the sale conveyed no title to the auction-purchaser and further, that subsequent to the auction sale the land was

enfranchised by the Government in the name of the judgment-debtor, Perumal, and that he is now holding it as the purchaser from the said

Perumal. The question for decision arising in these circumstances is whether it is now open to the defendant to put forward these pleas by way of

resistance to the plaintiff''s suit for redemption. It may be stated at the very outset that arguments have proceeded on the assumption that for the

purposes of this case the defendant may be taken to represent Perumal, the judgment-debtor, and that he claims through him. It has also been

assumed throughout the arguments that Perumal was aware of the execution proceedings and did not object to the same. It has also not been

disputed that the defendant himself during the course of the execution proceedings put forward his mortgage interest and that the property was

ordered to be sold subject to such interest.

The auction sale was held on the assumption that the property sold was alienable. Is it now open to Perumal or the defendant to plead that the

property is inalienable ? In my opinion the decision in Lala Ram v. Tkakur Prasad ILR (1918) A 680, Dwarkanath Pal v. Tarini Sankar Ray ILR

(1907) C 199 and Pandurang Balaji v. Krishnaji Govind I L R (1903) B 135 conclusively show that it is not open to him to raise these contentions

now. In Lala Ram v. Thakur Prasad ILR (1918) A 68c a house was sold by auction in execution of a decree obtained against the defendant in the

case and was purchased by the plaintiff. When he failed to get actual possession, he instituted a suit for its recovery, but his claim was contended

on the ground that the house was not liable to sale in view of the provisions of Section 60(c) of the Code of Civil Procedure. The learned Judges

held in the case that "" after that sale and confirmation of sale, it was not open to the defendant at this stage to question the validity of the sale and

the title which the plaintiff had acquired under it. ""In the course of their judgment, the learned Judges observe as follows:

Under Order 21, Rule 92, after a sale has taken place and has been confirmed the auction-purchaser acquires a title to the property. In the present

instance no objection to the sale was raised before it took place or at any time. It is not suggested in the pleadings that the defendant-judgment-

debtor was not aware of the execution proceedings. As between him and the auction-purchaser the sale has become conclusive and the auction-

purchaser has acquired a vested interest in the property sold....In the present case no objection having been taken and the sale having become

conclusive as between the parties, it is not open, in our opinion, to the defendant after the lapse of so many years from the date of the sale to

contend that the sale ought never to have taken place and conveyed no title to the purchaser.

This view is supported by the decision in Dwarkanath Pal v. Tarini Sankar Ray ILR (1907) C 199. In overruling the contention similar to the

one raised in the present case the learned Judges in that case refer with approval to the opinion of Mr. Justice Mitra in Sheik Murullah v. Sheik

Bundlah 9 CWN 972 to the effect that "" after a judgment-debtor, with a full knowledge of the execution proceedings and full opportunity of raising

an objection to the effect that the holding was an occupancy holding and non-transferable, had failed to raise that objection at the time of the sale, if

was not competent to him to resist the purchaser after the confirmation of the sale and that as between the purchaser and the judgment-debtor the

title, to the property vested in the purchaser on the confirmation of the sale."" The apparently contrary opinion expressed in Bhiram Alt Shaik

Shikdar v. Gopi Kanth Shaha ILR (1897) C 355 in favour of the view that the defendant could resist the auction purchaser''s suit though he did not

object to the attachment and sale, had been sufficiently explained in the case in Sheik Mnrullah v. Sheik Burullak 9 CWN 972 which has been

referred to in Dwarkanath Pal v. Tarini Sankar Ray ILR (1907) C 199. The decision in Bhiram Ali Shaik Shikdar v. Gopi Kanth Shaha ILR

(1897) C 355 has no doubt been mentioned with approval in two Madras cases, viz., Venkataramanachariar v. Meenakshisuridiaram Aiyar

(1908) 19 MLJ 1 and Thathu Naik v. Kondu Reddi ILR (1908) M 242, but as has been clearly pointed out in my learned brother''s judgment

there is nothing in these cases to suggest that the '''' principle on which Sheik Murullah v. Sheik Burul-lah 9 CWN 972 rests is not sound. "" The

decision in Pandurang Balaji v. Krishnaji Govind ILR (1903) B 125 also supports the view put forward on behalf of the appellant. Applying the

principle laid down in these cases, it follows that the defendant must be considered to be bound by the order confirming the sale in favour of the

auction-purchaser and that it is now open to him to question the validity of the Court-sale in the present case.

The above conclusion is supported also by the decisions in Gokulsingh Bhikaram v. Risen Singh ILR (1910) B 546 and Nadamuni Narayana

Aiyangar v. Veerabhadra Pillai ILR (1910) M 417 which state that principle in a slightly different way. In Gokulsingh Bhikaram v. Kisen Singh ILR

(1910) B 546 it was held that the judgment-debtors who had not objected in the course of execution to attachment and sale of the suit properties

could not afterwards question the validity of the sale in a suit instituted by the auction-purchaser. The learned Judges observe thus:

Though an auction-purchaser at a Court-sale in execution of a decree is not a party to the suit in which the decree was passed and though he is not

a representative of either the decree-holder or the judgment-debtor for the purposes of Section 244, yet if the question raised by the judgment-

debtor as to the legality of the Court-sale is virtually one between the parties to the suit, and if in the decision and result of that question the

auction-purchaser is interested, the judgment-debtor ought not to be allowed to attack the sale in a suit.

In Nadamuni Narayana Aiyangar v. Veerabhadra Pillai ILR (1910) M 417 the plaintiff (who represented the judgment-debtor in the prior suit)

sued to set aside the sale of a temple office which was made in execution proceedings in favour of the defendant-auction-purchaser. It was held by

Wallis, J., that he was precluded from bringing the suit by reason of "" the general intention of legislature "" as manifested in Section 244. The same

conclusion was arrived at by Krishnaswami Aiyar, J., who states the principle thus : ""The auction-purchaser derives his rights from the sale which

the party to the execution proceeding should not be permitted to impeach except by application to the executing Court. "" It seems to me that in all

the above decisions which we have examined the learned Judges give effect to the broad principle that the proper place to raise objections to

attachment and sale is the executing Court and that the judgment-debtor who has had notice of the execution proceedings must be deemed to be

bound by the order passed in such proceedings confirming the sale in favour of the auction-purchaser. As already pointed out it follows therefore

that the defendant is now precluded from raising his present contentions.

In the view it is not open to the defendant to plead that the suit land is inalienable inasmuch as he is bound by the order confirming the sale

which amounts to an adjudication that the land can be sold, the question whether the sale of an unenfranchised inam is absolutely void does not

strictly arise in this case and the decisions cited in support of that contention, viz., Raja of Vizianagram v. Dantivada Chelliah ILR (1904) M 84,

Sannamma v. Radhabayi ILR (1917) M 418 : 34 MLJ 17 , Nazabari Sahu v. Siva Korithan Naidu (1913) MWN 415 need not therefore be

considered.

In the result, I agree that the decision of Krishnan, J., should be set aside and the case should be remanded to the Lower Court for disposal as

pointed out by my learned brother. The defendants will pay the costs of the plaintiff up to date.