MOHAMMED YUSUF Vs. M. RAMGASWAMI REDDIAR AND OTHERS

JUDGEMENT

(1.) This appeal arises out of the execution proceedings in O. S. No. 80 of 1956 on the file of the Sub Court, Tiruchirapalli. The petitioner filed an Execution Application No. 449 of 1961 out of which this appeal arises under O. 34, R. 5, Ss. 47, 146 and 151, C. P. Code. It is necessary for me to state a few facts more in what circumstances the appellant filed the above execution application. Respondents 3 and 4 were the defendants in the said suit O. S. No. 80 of 1956. They executed a mortgage in respect of the suit property in favour of the second respondent, the plaintiff in the above said suit. He obtained a mortgage decree and in execution thereof, he brought the property to sale and in the auction, the first respondent became the purchaser of the property and the sale has to be confirmed. It is at that stage the appellant intervened by filing the above application and deposited a sum of Rs. 17,140 -50 and prayed to the Court that the sale may be let aside. He further contended that he is the person interested in the property since he had already obtained a declaratory decree in his favour in a specific performance suit filed by him against the mortgagor. His application was mainly contested by the first respondent that the application itself is not maintainable under O. 34, R. 5, C. P. C., as he is not the defendant in the suit to deposit the money and get the sale set aside. He has no locus standi to file the application as he is not the judgment debtor. The appellant cannot seek the aid of S. 146, C. P. C, and his petition is not filed under O. 21, R. 89, C.P.C. The decree for specific performance passed in his favour would not give him any title to the property and his petition should be dismissed.

(2.) The only question that was considered by the Court below was whether an application filed by the applicant was maintainable. The learned Subordinate Judge gave a finding that mere obtaining the decree for specific performance in respect of the suit property would not entitle him to file this application, and further O. 34, R. 5, C.P.C., applies only to the defendant -judgment debtor and the appellant herein cannot be included in the definition of the word "defendant" in O. 34, R. 5, C. P. C. It gives a privilege to the defendant only to deposit the money before the sale is confirmed. Therefore his application was dismissed.

(3.) Now it is against this order that the petitioner filed this appeal. The question that has to be considered is whether the appellant has got any locus standi to file this application. In order to answer this question, some dates are relevant both in respect of the mortgage suit and the suit for specific performance. As previously stated by me. the second respondent filed a suit against respondents 3 and 4 on a. mortgage executed by them, on 26th July 1956. Preliminary decree was passed on 18th September 1956. Final decree was passed on 20th September 1957. In the meantime. the appellant entered into an agreement to purchase the property subject to the mortgage from the second respondent. Subsequently, he had to file a suit O. S. No. 167 of 1958 for specific performance against the second respondent and it was decreed in his favour on 31st December 1969. When the mortgaged properties were brought to sale on 14th September 1960, he deposited a sum of Rs. 1000 and got the sale adjourned to a subsequent date, that is, 12th October 1960. When the properties were brought to sale once again, he deposited Rs. 4000 and got it adjourned to 9th November 1960. Subsequently he did not pay the balance of the mortgage decree amount. Therefore the second respondent brought the mortgaged property for sale and it was purchased by the first respondent on 19th November, 1960 for a sum of Rs. 16,000. The appellant long after the sale filed an application on 31st July, 1961, under O. 34, R. 5, C. P. C., by depositing the balance amount into the Court. Admittedly, this application was filed more than 30 days. This application is barred by limitation. Nevertheless the appellant seeks the aid of S. 146, C. P. C., as representative of the judgment -debtor.