PUTHIYA VEETTIL CHANDANATHIL MUKKAYI Vs. THOTTATHI PARAMBIL PATHAVUMMA

JUDGEMENT

(1.) The plaintiffs are the appellants. The appeal arises in a suit instituted by them for redemption and for recovery of possession in the following circumstances. The suit property be-longed to one Koyamu, who was the brother of the plaintiffs and father of defendants 5 and 6. Kayamu mortgaged the property to the second defendant. The second defendant instituted O. S. No. 513 of 1950 on the file of the District Munsif's Court of Ponnani for enforcement of the mortgage, obtained a decree for sale, purchased the property in execution of that decree and got possession of the same on 16-1-1938. The Madras Agriculturists Relief Act (Act 4 of 1938), came to be passed soon thereafter and the plaintiffs 2 to 4 and defendants 5 and 6 applied under Section 23 of the said Act for setting aside the sale. The sale was set aside by order dated 27-7-1938. A petition was filed under Section 20 of the Act. Then further proceedings were taken under the Act for scaling down the decree. The decree was scaled down by an order of the District Munsif of Ponnani made on 27-10-1942. The amount of the decree was reduced. For the purpose of discharging the scaled down decree the first plaintiff for himself and as guardian of defendants 5 and 6 executed a mortgage of the same property in favour of the first defendant for a sum of Rs. 306 out of which a sum of Rs. 260 was reserved with the first defendant for payment of the scaled down decree in O. S. No. 513 of 1930. The second defendant assigned his decree to the third defendant and the third defendant brought the property to sale. The first defendant not having paid the sum of Rs. 260 of the mortgage amount, the plaintiffs had to deposit a sum of Rs. 307 & had the sale set aside and full satisfaction of the decree was entered up on 15-8-1945. The present suit therefore is to redeem the mortgage in favour of the first defendant and also to recover possession from the first defendant, or in the alternative from the second defendant.

(2.) The main objection to the maintainability of the suit was that the suit was barred either under Section 47 or Section 144, C. P. C. Both the courts below have rejected the contention founded on Section 47 and the learned Subordinate Judge in appeal, however, held that the suit is barred under Clause (2) of Section 144, C. P. C. In so far as the objection under Section 47 is concerned, the view taken by the lower courts appears to be correct, as in no view of the case could it be said that a proceeding to recover back possession of property in the possession of a decree-holder-purchaser which sale in his favour was set aside under Section 23, Madras Agriculturists' Relief Act, could be a proceeding relating to execution, discharge or satisfaction of the decree. The observations of Patanjali Sastri J. in --'T. Annamalai Mudali v. T. Ramaswami Mudali', AIR 1941 Mad 161 at p. 172 (A), were relied upon by the lower courts in repelling the contention based under Section 47. A distinction was made between the case of a stranger purchaser in court auction and a decree-holder-purchaser and it was held that where a decrees-holder purchases a property in court auction, he cannot be regarded as having got the full fruits of his decree until he gets possession of the property purchased and the decree cannot be deemed to have been fully satisfied until such delivery was obtained. But in the present case the second defendant had obtained delivery of possession and there was nothing that remained to be done in furtherance of the execution of the decree and that therefore this is not a matter, which could be said to relate to the execution of the decree.

(3.) Apart from the fact that the decree must be deemed to have been satisfied by reason of the decree-holder-purchaser taking possession and the execution proceedings having become complete, the sale in the present case having been set aside under Section 23 of Act 4 of 1938, the effect of such a setting aside of a sale is that the sale shall be deemed not to have taken place at all. If the sale had not taken place by virtue of the statutory provision in Section 23, notwithstanding that the sale was really in execution of the mortgage decree, there is no question of any proceeding in execution pending nor could a proceeding for recovering back possession be considered to be a proceeding In execution, or execution of the decree, since the application for recovery of possession is not in pursuance of any execution of the decree. Either way, it cannot be said that the present proceeding anywhere comes within the scope of Section 47.