GOPALAN NAIR Vs. BHARATHI AMMA

JUDGEMENT

(1.) The 2nd plaintiff in O.S. No. 51/1104 of the Quilon District Court is the appellant in this case. The appeal is from an order in execution. The suit was for partition. When the plaintiffs applied for delivery of possession of the properties allotted to their share in the final decree the present respondent put in an obstruction petition in respect of 20 cents in the decree schedule C item No. 20. It was contended that this plot was sold in revenue auction on 10.8.1109 for arrears of Sirkar Tax and was purchased by the 70th defendant in the case who sold it to the obstructor on 11.10.1110. The lower court allowed the obstruction petition and the appeal is filed from that order.

(2.) The suit was filed in 1104 and the preliminary decree was passed on 27.1.1110 and the final decree on 27.5.1110. The revenue auction was on 10.8.1109 i.e., before the date of the preliminary decree. The points urged in this appeal by the learned advocate for the appellant are the following. (1) The revenue sale is affected by lis pendens; (2) the 70th defendant who was the revenue auction purchaser was bound to put forward his claim in respect of the property in the suit itself and that therefore the present plea of his assignee is barred by res judicata and (3) the execution court is not competent to go behind the decree which awards the disputed plot to the plaintiffs.

(3.) With regard to the first point the learned advocate for the appellant relies on a ruling of the Travancore High Court reported in 1949 T.L.R. 36 (Janaki Amma v. The Dewan of Travancore). That was a suit instituted to set aside a revenue sale on the ground that it was vitiated by material irregularities. The revenue sale took place during the pendency of a suit for partition. It was held in that case that the karnavan of the tarwad was not a party to the revenue proceedings and that the sale was therefore invalid and not binding on the tarwad. It was also held that the revenue sale was vitiated by lis pendens. This question came up for consideration in a later case reported in 1950 KLT 322 (Krishna Kartha v. Kumaraswami Namboothiripad). In that case Mr. Justice Govinda Pillai observed thus: The observation thus made in 1949 T.L.R. would therefore indicate that the revenue sale is vitiated by lis pendens and that it will not affect the rights of the auction purchaser in execution of the decree. This observation or dictum is against the decision of the Full Bench in 28 TLJ 226. That holds that a revenue sale puts an end to all the charges whether these charges had merged in a decree of court or not. Otherwise there would be no meaning for the provisions in S.2 and 39 of Act 1 of 1068 that the land, the buildings upon it and its products shall be regarded as security for the public revenue on such land and that all lands brought to sale on account of arrears of revenue due thereon shall be sold free of all encumbrances. If the said observation in 1949 T.L.R. 36 purports to lay down a proposition of law, I would with all respect state that the law was not correctly stated and that it is opposed to the Full Bench ruling in 28 TLJ 226. I would therefore prefer to follow 28 T.L.J.