MOHAN Vs. VARALAKSHMI AMMAL ALIAS ANNAPOORANI AMMAL

JUDGEMENT

(1.) THIS civil revision petition is directed against the order of the learned District Munsif, Tindivanam, in E.A. No. 1042 of 1985 in O.S. No.652 of 1969 dismissing that application filed by the petitioner Under Section 47, C.P.C. praying that the decree in O.S. No.652 of 1969, District Munsif's Court, Tindivanam, should be held to be unenforceable and that the execution proceedings therein at the instance of the respondent are invalid. Briefly stated, the facts giving rise to this civil revision petition are as follows: The respondent herein is the wife of one Subramania Chettiar. She instituted O.S. No.652 of 1969, District Munsif's Court, Tindivanam, against her husband Subramania Cheuiar praying for recovery of Rs. 1,650 towards past maintenance and future maintenance at Rs.100 per mensum. With a charge on the house property hearing door No.18, Perumal Koil Street, Tindivanam. On 8 -9 -1969, the respondent obtained a decree in O.S. No. 652 of 1969 as prayed for by her with a charge over the property. In execution of this decree, the respondent filed E.P.No.733 of 1981 praying for the sale of the property charged under the decree and in the court -sale held on 6 -2 -1985, the respondent purchased the property with permission of Court and a sale certificate was also directed to be issued to her on 17 -2 -1988. The father of the petitioner, One Sambasiva Chettiar, instituted O.S. No.231 of 1969, District Munsif's Court, Tindivanam, against Subramania Chettiar, the husband of the respondent herein, for the recovery of certain amounts stated to be due from him and obtained decree in that suit on 21 -4 -1969. That decree was put into execution in E.P.No. 960 of 19(59, subject to the rights of the respondent herein under the decree obtained by here in O.S. No. 652 of 1969 and the property referred to earlier was brought to sale in court auction and the petitioner purchased the property and a sale certificate was also issued in his favour on 21 -8 -1972. Pursuant to the court -sale, the petitioner applied for delivery of possession and obtained the same on 8 -9 -1972. It may also be mentioned that Sambasiva Chettiar, the father of the petitioner and the decree holder in O.S. No.231 of 1969, instituted O.S. No. 257 of 1970, Sub Court, Cuddalore, purporting to represent the general body of creditors of Subramania Chettiar, against the respondent herein and others praying for a declaration that the decree obtained by the respondent in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, and other decrees are collusive decrees. That suit was resisted by the respondent in relation to the decree obtained by her in O.S. No.652 of 1969 on the ground that the decree obtained by her was neither collusive nor fraudulent and this plea was accepted and the suit in O.S. No.257 of 1970 in so far as it related in O.S. No.652 of 1969 and another decree in O.S. No. 651 of 1969 was dismissed on 26 -11 -1974 and an appeal there from in A.S.No. 36 of 1975 before the District Judge of South Arcot at Cuddalore, was also dismissed on 25 -3 -1980. Thereafter, Sambasiva Chettiar preferred E.A.No. 332 of 1982 before this Court and during its pendency, he died and the petitioner was brought on record in the second appeal as one of his legal representatives and that second appeal was also dismissed on 21 -9 -1990. In E.A. No. 1042 of 1985 filed by the petitioner. Under Section 47, C.P.C. he claimed that Subramania Chettiar; the defendant in O.S. No. 652 of 1969, had not been heard of since 1968 and his whereabouts had not been known and he should be presumed to be dead, and, therefore, the further proceedings taken by the respondent herein in execution of the decree obtained by her in O.S. No.652 of 1969 were all invalid and the court -sale held in O.S. No. 652 of 1969 should also be set aside. In the counter filed by the respondent, she disputed that since 1968 her husband had not been heard of and his whereabouts had not been shown and that he should be presumed to be dead and further stated that she had executed the decree according to law and the petitioner has no locus standi whatever either to maintain the application under Section 47, C.P.C. or even to question the court -sale in her favour in execution of the decree in O.S. No. 652 of 1969, District Munsif's Court Tindivanam.

(2.) BEFORE the Court below, on behalf of the petitioner, Exhibits A -1 to A -6 were filled and the petitioner and two others were examined as P.Ws. 1 to 3, while, on behalf of the respondent, Exhibits B -l, and B -2 were marked and the respondent and another gave evidence as R.Ws 1 and 2. On a consideration of the oral as well as the documentary evidence, the Court below found that the petitioner had not established that the judgment -debtor in O.S. No. 652 of 1969, viz., Subramania Chettiar had died by the time the execution proceedings in that suit were commenced and that the petitioner is not entitled to any of the reliefs prayed for. On those conclusions, E.A. No. 1042 of 1985 was dismissed, against which the petitioner preferred C.R.P. No. 3007 of 1988. On 28 -11 -1968, that civil revision petition was dismissed even at the stage of admission and that order was carried on in appeal before the Supreme Court in Civil Appeal No. 5017 of 1969 and by order dated 7 -12 -1969, the Supreme Court directed the petitioner to file a certified copy of the sale certificate in O.S. No.231 of 1969, District Munsif's Court, Tindivanarn, as well as the entertaining of the civil revision petition was admitted and that is how the matter has again come up before this Court.

(3.) THERE cannot be and indeed there is no dispute that the petitioner was not a party to O.S. No. 652 of 1969, District Munsifs Court, Tindivanam, as the respondent herein was the plaintiff in that suit and her husband Subramania Chettiar was the defendant. Considering the array of parties in O.S. No. 652 of 1969, the petitioner cannot be considered to be a party to the suit O.S. No. 652 of 1969. Under Explanation II(a) to Section 47, C.P.C., by a deeming provision, a purchaser of property at a sale in execution of a decree is regarded as a party to the suit in which the decree is passed. This Explanation had been inserted with a view to set at rest a controversy that had prevailed once whether a court auction purchaser can be regarded as a party to the suit or not. Having regard to the purpose for which Explanation II(a) to Section 47, C.P.C. had been inserted, it is seen that the purchaser of property at a Court -sale in execution of a decree, by a fiction, is deemed to be a party to the suit in which the decree is passed. Obviously, therefore, the passing of the decree in the suit and the execution of the decree so passed, have reference to the same suit and not different suits. This is reinforced by limiting the operation of the deeming provision making the court auction purchaser a party, to the suit in which the decree is passed. The object of Explanation II(a) to Section 47, C.P.C. is to make the court auction purchaser in execution of decree in a particular suit, a party to that suit, as the decree passed in that suit had been put into execution and the property is purchased by the court auction purchaser in -that suit, and it cannot have any reference whatever to suit other than the one in which the decree is passed and by the purchase of the property in execution of the decree in which suit, the court auction purchaser is deemed to be a party to that suit. In other words, by reason of the court auction purchaser in execution of a decree in one suit, such purchaser, cannot claim to be a party to another suit, without reference to a purchase in court auction in execution of the decree in that other suit. The use of the expression, "deemed to be a party to the suit" (underlining mine) shows that the court auction purchaser is deemed, by the fiction enacted, to be a party to that suit, in which the decree is passed and in execution of which decree, the property is purchased by the court auction purchaser and not any other suit or the purchase of property in execution of a decree in another suit. In view of this, the petitioner, at best, by reason of Explanation II(a) to Section 47, C.P.C. can be deemed to be a party to O.S. No. 231 of 1969, District Munsifs Court, Tindivanam, pursuant to the decree in which he purchased the property in court auction on 21 -8 -1972 and he cannot be regarded as a party at all to O.S. No.652 of 1969, District Munsif's Court, Tindivanam, in the course of the execution of the decree in which the petitioner never purchased the property. In view of this, the petitioner cannot, by reason of his having purchased the property in court auction in O.P. No. 231 of 1969, District Munsifs Court, Tindivanam, and invoking Explanation II(a) to Section 47., C.P.C. claim that he is a party to O.S. No.652 of 1969 also, as to maintain an application under Section 47, C.P.C. as a party to O.S. No.652 of 1969. It would be appropriate at this stage to refer to the decision in A.V. Ramaswamy lyengar v. The Syndicate Bank, 1980 T.L.N.J. 99 relied on by learned Counsel for the petitioner. Explanation II(a) to Section 47, C.P.C. had been construed therein by Sathiadev, J. as having the effect of asking the purchaser of a property in court auction sale in execution of the decree in one suit, deemed party to another suit, in which the same property is brought to sale and that the amendment had been ushered in to set it rest conflict of decisions on the point and that by deciding the question under Section 47, C.P.C., no prejudice would be caused, as its object is to decide all questions relating to execution, discharge or satisfaction. The view so taken is not only opposed to the language employed in Explanation II(a) to Section 47, C.P.C., but also widens the scope of the deeming provision by reading into it another deeming provision, as it were, asking the court auction purchaser in execution of a decree in one suit, a party to another suit in execution of the decree in which he had never purchased the property. The circumstances that the same property happened to be the subject -matter of court -sale in execution of the decrees in two suits would not justify the application of Explanation II(a) to Section 47, C.P.C. to sale of the court auction purchaser in one suit, a party to the other suit, in the execution proceedings in which he might not have participated at all. The interpretation put upon Explanation II(a) to Section 47, C.P.C. in the decision referred to above is wider than the Explanation itself and is not warranted by the language employed in Explanation II(a) to Section 47, C.P.C. The function of a court is to interpret the deeming provision, as it is and not read into it more than what had been stated therein and create a tier of deeming provisions. In view of the language employed in Explanation II(a) to Section 47, C.P.C. restricting the applicability of the deeming provision to the Court auction purchaser in execution of a decree in the suit, it follows that it can never comprehend the Court auction purchaser in execution of another decree in another suit, as in this case. In view of this, the reliance placed by learned Counsel for the petitioner upon the decision referred to earlier is of no assistance to him as it proceeds on as erroneous interpretation of Explanation II(a) to Section 47, C.P.C., it has, therefore to be held that the petitioner cannot by any stretch of imagination be deemed to be a party to O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, by reason of his court auction purchase in execution of the decree in O.S. No.231 of 1969, District Munsif's Court, Tindivanam.