SYED AHMED Vs. SALIMA BI

JUDGEMENT

(1.) THE 3rd respondent in R. E. No. 290 of 1975 in R. E. No. 429 of 1963 in O. S. No. 733 of 1956, Principal District Munsif's Court, Tirupattur, is the petitioner in this civil revision petition. THE properties belonged to deceased K. Mohamed Zacria Sahib, whose widow, sons and daughters figure as respondents Nos. 1 to 10 in this civil revision petition. Mohamed Zacria executed a mortgage in favour of one Margabandu, the father of the 11th respondent herein and a suit in O. S. No. 733 of 1956 was instituted for enforcing the mortgage. On 17th September, 1957, a preliminary decree was passed which was later followed up by a final decree on 30th June, 1960. In execution thereof, the properties were brought to sale and the 12th respondent, who is stated to be a close relation of the 11th respondent, purchased the properties in Court auction on 18th March, 1964. THE sale was confirmed on 29th May, 1964 and the 12th respondent also took delivery through Court on 29th July, 1964. THEreafter Mohamed Zackria, the original owner of the properties filed a petition R. E. A. No. 282 of 1965 on 24th December, 1964, under section 47 of the Code of Civil Procedure contending that the Court sale held was void as no sale notice was served on him. Accepting that, the sale was also set aside on 23rd February, 1972 against which an appeal was filed by respondents 11 and 12 herein in C. M. A. No. 46 of 1972, Sub-Court, Tirupattur, which was also dismissed. THEreupon, the 11th respondent herein preferred an appeal before this Court in A. A. O. No. 90 of 1973 and on 20th September, 1974, this Court dismissed the appeal confirming the judgment and decree of the lower Courts. After filing R. E . A. No. 282 of 1975, Mohamed Zackria died. Meanwhile, the 12th respondent sold the properties to the petitioner on 30th December, 1964 and the petitioner remained in possession of the properties. After the death of Mohamed Zackria, respondents 1 to 10 were brought on record and they filed an application in R. E. A. No. 290 of 1975 under sections 144 and 131, Civil Procedure Code for delivery of possession of the suit properties to them and also to direct the petitioner and respondents 11 and 12 to account for the income from the suit properties from 29th July, 1964 upto the date of delivery of possession. That application was resisted by the 14th respondent herein contending that his father Margabandu had instituted that suit on the mortgage in O. S. No. 733 of 1956 and pursuant to the decree, the properties were sold and purchased by the 12th respondent herein on 18th March, 1964. It was his further case that Mohamed Zackria had leased out the properties to the petitioner herein on 22nd February, 1962 and subsequent to the delivery of possession of the properties to the 12th respondent herein, the petitioner had purchased the same on 30th December, 1964 and there cannot be therefore by any liability on the part of the 11th respondent for accounting. It was also contended by him that respondents 1 to 10 are not entitled to any compensation and that the relief of restitution would not be available excepting as against a person in possession of the properties.

(2.) THE petitioner, who figured as the 3rd respondent in that application, contended that he is a bona fide purchaser for value without notice having purchased the properties on 30th December, 1964 from the 12th respondent herein who had no connection with the 11th respondent. It was also the further case of the petitioner that he bad deepened the well at a cost of Rs. 2,000 and that owing to the low fertility of the soil, proper cultivation could not be carried on. THE petitioner also claimed that he had planted 70 coconut seedlings and had also incurred further expenditure for keeping a watchmen etc., and also claimed to have improved the land by spending a sum of Rs. 2,000. An objection was raised to the maintainability of the application under section 144. THE petitioner claimed that respondents 1 to 10 are liable to pay a sum of Rs. 6,000 together with another sum of Rs. 600 towards the stamp duty and registration charges etc. A further claim for compensation in respect of the value of the coconut trees was also made by the petitioner against respondents 1 to 10. THE liability to render an account of the income from 29th July, 1964 was also disputed by the petitioner.

(3.) THE entitlement of respondents 1 to 10 to be put back in possession of the properties now with the petitioner cannot be seriously disputed. THE petition filed by Mohamed Zackria for setting aside the sale was on 24th December, 1964 and within six days thereafter, on 30th December, 1964 the petitioner purchased the properties from the 12th respondent herein. It is obvious that the purchase by the petitioner was after the initiation of the proceedings by late Mohamed Zackria for setting aside the sale and consequently, the right of the petitioner if any, would only be subject to the result of that application. On 23rd February, 1972, it was held that the sale held on 18th March, 1964 was void for non-service of sale notice on the judgment-debtor and consequently, the sale was set aside, which was confirmed in appeal on 23rd March, 1973 and later affirmed by this Court also in C. M. S. A. No. 90 of 1973 on 20th September, 1974. Having regard to the purchase of the properties by the petitioner from the 12th respondent herein during the pendency of the proceedings to set aside the sale, the title of the 12th respondent himself was not perfected at the time when he purported to transfer the properties in favour of the petitioner herein and when the title of the 12th respondent was defeated by the sale being set aside, the petitioner certainly could not have obtained any title to the property by such purchase from the 12th respondent during the pendency of the proceedings to set aside the sale initiated by Mohamed Zackria. It is also the finding of the Courts below, which has not been in any manner challenged, that the petitioner purchased the properties with the knowledge of the initiation of proceedings by Mohamed Zackria against respondents 11 and 12 herein. Consequently, it must be held that the petitioner did not acquire any title as such to the properties and on the setting aside of the sale in favour of the 12th respondent herein by the Courts, the petitioner was bound to put back respondents 1 to 10 in possession of the properties. THE order of restitution passed by the Courts below therefore, is correct.