PARAMESWARA IYER Vs. KRISHNA IYER

JUDGEMENT

(1.) Shorn of unnecessary details this is a simple suit. One Harihara Iyer purchased the plaint property in execution of the decree in O. S. 210 of 1090 which was obtained on a simple mortgage deed. He assigned the auction right to the defendant appellant's brother under whom the defendant claims. When the appellant applied for delivery of possession, the plaintiff respondent obstructed alleging that he was in possession under a court sale held in execution of O. S. No. 1222 of 1094, a simple money decree against the judgment debtor. The obstruction was overruled by the execution court and he filed this suit, for cancellation of the order. Although the court below held that the order of the obstruction petition was not liable to be set aside, the plaintiff was given a decree to redeem the defendant on payment of the sum paid by him to take the assignment of the auction right. The defendant has therefore preferred this appeal. The respondent has filed a memorandum of cross objections regarding the findings against him.

(2.) The Court sale in O. S. No. 1222 of 1094 is clearly vitiated by lis pendens, the sale having been conducted long after the decree in O. S. No. 210 of 1090 was passed. The contentions of the parties must be considered in the light of this fact.

(3.) The main contention of the respondent is that Harihara Iyer under whom the appellant claims had taken a mortgage deed Ext. K. directing him to pay the decree debt in O. S. No. 210 of 1090 and other debts, and that O. S. 210 must therefore be treated as satisfied. It is therefore urged that the sale in execution of O. S. No. 210 did not confer any title on Harihara Iyer. The respondent is not entitled to raise this point as the judgment in O. S. 210 of 1090 raised the identical point in execution and failed, Ext. IV being the appellate order. The respondent who purchased the judgment debtor's interest in execution of the simple money decree is his representative and the question must be treated as concluded by order Ext. IV. Counsel for the respondent had an argument that Ext. IV cannot operate as res judicata as the decision was in a proceeding in the Munsiff's Court while this is a suit in the District Court. There is no substance in this argument because the real hurdle is not S.11 but S.47 of the Code of Civil Procedure. The respondent is a representative of the judgment debtor and questions relating to the discharge or satisfaction of the decree must be determined by the court executing the decree and not by a separate suit. The further contention that a fresh suit is available to him under Rule 103 of O.XXI is also of no avail because the suit contemplated by that rule is one to set aside the order on an obstruction petition by one who is not a party to the decree. So far as parties to the suit or their representatives are concerned, the question of satisfaction of the decree is one to be determined by the Court executing the decree. Such a Court having decided the question once, there is no point in the submission that the suit may be treated as a proceeding in execution, as the bar of res judicata will arise.