THANKAMMA Vs. MAMACHAN

JUDGEMENT

(1.) THIS revision is directed against the order rejecting the objections raised by the additional 9th respondent against execution. The revision arises from a suit, O. S. No. 160 of 1523. The bare facts necessary to understand the history of the litigation are as follows.

(2.) ONE David Moses owned 44 cents of land on which stood a building. He had executed a mortgage on 9/8/1101 in favour of Luthor Annam, the 1st defendant. David Moses assigned the equity of redemption to one Thomas on 30-3-21 who in turn assigned it to the plaintiff on 19-9-21. It was on the strength of this assignment that the plaintiff filed the suit for redemption of the mortgage. In the suit the defence put forward by the 1st defendant and the 2nd defendant by a joint written statement was that Moses had agreed to sell the property by an agreement dated 5-9-1108 for Rs. 1920/-agreeing to execute the sale deed within six months, failing which the agreement would be construed as a sale deed. It appears, that the defendants had put forward several documents including a will to defeat the interest of the plaintiff. Pending suit the 1st defendant died. Defendants 2, 3,4 and 5 were impleaded as her legal representatives. The suit was decreed which was ultimately confirmed by this court in S. A. No. 149 of 1954, on 28-3-1956. The decree-holder died. His widow was originally impleaded on whose death, her grand-son the donee from the grand-father was impleaded as additional decree-holder. E. P. 63 of 1958 was filed on 5-2-1958. Objections were filed regarding impleading the 5th plaintiff which ultimately was settled by the judgment of this court in S. A. 715/1960. The execution petition went back to the execution court. It was proceeded with against defendants 2 to 5. Several objections were filed by the 2nd defendant on 15-12-1964 who alone contested. The objections inter alia contained a plea of kudikidappu right and a claim for value of improvements. On 15-7-1970 he filed an additional objection claiming the benefit of S. 4a of Act 1 of 1964 as amended by Act 35 of 1969, stating that the building on the property was put up by him and that the other building had been destroyed. The execution court upheld the claim made under S. 4a. The additional decree-holder filed an appeal, a. S. 65 of 1974, in the Additional District Court, Parur. Pending appeal second defendant died. His legal representatives were brought on record, as respondents 2 to 7. The appeal was allowed and the plea under S. 4a therefore was rejected. The 3rd respondent filed CRP. No. 85 of 1978 against this order which was dismissed on 10-7-1979. The matter went back again to the execution court at which stage the present petitioner who is the 9th defendant in the suit raised the following objections to execution. She is residing in the property having 22 cents in extent which is orally gifted to her by her mother, the 1st defendant, 32 years back. Balance 22 cents was with the 2nd defendant. Her son had purchased 11 cents of property from the 2nd defendant. On these pleas it was contended that the decree-holder could not get recovery of the property on the strength of the decree for redemption.

(3.) AN apparent conflict between Kunjan's case (1963 KLT. 500) by Raman Nayar, J. and Joshua's case (1962 KLJ. 672) by Madhavan Nair J. emboldened him to make a request to me to refer the question involved to a division Bench. I have resisted the temptation to do so in view of the wealth of authorities against him. The petitioner's counsel submits that all questions between the decree holder and the judgment debtor including his legal representatives even when they setup independent rights opposed to the decree have to be decided in execution under S. 47 C. P. C. The only plea that can fall outside the scope of S. 47 now is a plea of jus tertit. He submits that the explanation to S. 47 by the 1976 amendment has widened the scope of the section. 0. 21 R. 58 and 0. 21 R. 97 have been amended denying the right of suit which existed till the amendment. In support of the plea that S. 47 has to be liberally construed, he invited me to, Presunno Kumar Sanyal v. Kali Das Sanyal (I. L. R. XIX Calcutta 683), and Veyindramuthu Pillai v. Maya Nadan and others (AIR 1920 Madras 324, F. B.) He also referred me to Ramanna v. Nallaparaju (AIR. 1956 S. C. 87), B. V. Patankar v. C. G. Sastry (AIR 1961 SC 272), M. P. Shreevastava v. Veena (AIR. 1967 S. C. 1193) and Harnandrai v. Debiduit (AIR. 1973 S. C. 2423 ). In support of his submission that except the plea of jus tertit all other questions have to be decided in execution, he relied upon Ram ghulam v. Hazaru Kumar (ILR VII Allahabad 547), Sethchand Mal v. Durga Dei (ILR. XII Allahabad 313), Rajrup Singh v. Ramgolam Roy (ILR. XVI Calcutta 1), Punchanup Bundopadhya v. Rabia bibi (ILR. XVII Calcutta 711) and Murigeya v. Hayat Saheld (ILR. XXIII Bombay 237 ). He invited my attention to Mt. Aisha v. Jowahir Mal (AIR. 1929 Lahore 762) to submit that there is no difference between money decree and mortgage decree in the application of S. 47. He relied upon, Kuriyali v. Mayan (ILR. 7. Madras 255), Moppet) Vava Srank Usmal v. Nasiyalwale (3 TLJ. 164), Govindarajulu v. Chinnathambi (AIR. 1928 Madras 1270)and Chinnathayee v. Lakshmi Achi (AIR. 1936 Madras 675) in re-inforcement of his submission that S. 47 applied incases of mortgage decrees also.