SIVAKAMI AMMAL Vs. C. GANAPATHIA PILLAI AND ANR.

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit was to set aside the order passed by the District Munsiff, Madura Town, In E.A. No. 887 of 1943, which was an application filed by the plaintiff under Order 21, Rule 97 of the Code of Civil Procedure. The facts are not in dispute but it is necessary to state them to appreciate the contention of the parties in this appeal. The subject -matter of the suit is a house in Madura Town which was owned by the 2nd defendant who is the husband of the plaintiff. The Madura Municipality sued the 2nd defendant in O.S. No. 396 of 1934 on the file of the District Munsiff's Court of Madura Town and obtained a decree. That suit was to enforce the statutory charge in respect of the arrears of property tax for the years 1931 to 1933. Though the decree was obtained in 1934 the house was brought to sale only on 21st October, 1940 and the plaintiff became the purchaser at the Court sale. A sale certificate was issued to her on 28th November, 1940. Meanwhile the Municipality had brought another suit against the 2nd defendant for arrears of property tax for the years 1934 to 1937 and obtained a decree in August 1937. In spite of having obtained this decree in 1937 the Municipality did not mention the existence of the decree or the charge for the arrears of the years covered by the decree either in the sale proclamation or in execution proceedings in O.S. No. 396 of 1934. Though the plaintiff became the purchaser on 21st October, 1940, she did not succeed in obtaining delivery of the property which was first obstructed by her husband's brother and brother's son and though she obtained an order for removal of obstruction by them there was again difficulty in obtaining possession. On 15th December, 1941, the 1st defendant who is the contesting respondent here became the purchaser of the same property in execution of the decree in O.S. No. 146 of 1937. Though by the date of the execution proceedings the plaintiff had become the purchaser of the property the Municipality as a decree -holder did not choose to bring on record the plaintiff in the execution proceedings. The sale in favour of the first defendant was therefore in proceedings of which the plaintiff had no notice. When the plaintiff eventually filed E.A. No. 887 of 1943 under Order 21, Rule 97 of the Code of Civil Procedure, there was obstruction by the first defendant claiming under his purchase in execution of the decree in O.S. No. 146 of 1937. The plaintiff's application was dismissed. Hence she was obliged to file the suit out of which the present second appeal arises, to set aside that order and obtain a declaration of title to the property. The learned District Munsiff of Madura decreed the suit. It is not necessary to give the reasons for his decision. On appeal by the 1st defendant the learned Subordinate Judge of Madura reversed the decision of the learned District Munsiff and dismissed the suit. The plaintiff has therefore filed the second appeal. Though there are several grounds raised by the appellant in her Memorandum of Appeal, I have heard her learned Counsel only on one point, as in my opinion, the appeal can be disposed of on that point.

(2.) IT is contended for the appellant that when the suit property was proclaimed for sale in execution of the decree in O.S. No. 396 of 1934 in E.P. No. 662 of 1939 the Municipality who was the decree -holder in that suit failed to notify the decree which they had obtained in O.S. No. 146 of 1937 and the charge they had on the property for the arrears of property tax for the years 1934 to 1937. The fact of this omission is of course not disputed, but the learned advocate for the appellant contends that on account of the failure to notify the existence of the subsisting charge for subsequent years the Municipality is estopped as against the auction -purchaser, i.e., the plaintiff, from asserting any claim to bring the property to sale in enforcement of the charge for the subsequent years. He relied upon two rulings reported in I.L.R. 15 Mad., in the first of which Jagannatha v. Gangi Reddi, I.L.R. (1892) Mad. 303 the plaintiff attached the property and brought it to sale in execution of a decree against the 1st defendant and the other defendants purchased at the Court sale, the property. The plaintiff had at the time a mortgage over the same property. But notice of his mortgage was not given in the execution proceedings. When the plaintiff sued to realise his security under the mortgage by sale of the premises which were in the possession of the auction -purchasers, it was held by the learned judges that the plaintiff was estopped from setting up his claim because he had allowed the auction -purchasers to buy without notice of the mortgage in his favour. The other decision in Kasturi v. Venkatachalapathi, I.L.R. (1892) Mad. 412 lays down a similar proposition. The learned Judges there say as follows:

(3.) LEARNED advocate for the contesting respondents, i.e., the first defendant, in my opinion, did not meet this argument but put forward a contention that the successive charges in favour of the Municipality can be enforced by successive sales. Learned advocate for the appellant never contested this, nor was it necessary for him to so contest. It is too well established to admit of any doubt that the Municipality gets the benefit of successive charges in respect of arrears of rent for successive periods. Undoubtedly the same property can be brought to sale any number of times for the arrears for different periods. It is also true that in each case the arrears are the first charge subject to government revenue. But all this is beside the point. The real question in this case has nothing to do with the rights of the Municipality as a Municipality. The question is whether a party, who obtains a decree against a property and brings it to sale when on the same property there is a subsisting charge, is bound to notify the existence of that charge for the benefit of the intending purchasers. The law is the same for municipalities as for private persons. A municipality does not cease to be a decree -holder because it is a Municipality.