KANAGASABHAI PATHAR Vs. POORNATHAMMAL

JUDGEMENT

(1.) THE point of law which arises in this revision petition does not appear to be covered by authority and must be decided on the language of the relevant statutory provisions. The respondent to this petition obtained a decree against one Apparasu Pathar in O.S. No. 382 of 1943 in the Court of the District Munsiff of Chidambaram for delivery of possession of a portion of a house. It is common ground that the original owner of the house was one Saradambal Ammal who died sometime before the institution of the suit. The respondent claimed title to the property as the purchaser from one Thaiyanayaki Ammal, the mother of the said Saradambal Ammal. The suit was based on a rent deed executed by the defendant Apparasu and after contest was decreed in the respondent's favour. In execution of the decree, the respondent obtained possession. The petitioner in this Court thereupon filed an application under Order 21, Rule 200 of the Code of Civil Procedure for delivery of possession alleging that he had been in possession of the property in his own right and had been wrongly dispossessed in the execution proceedings taken by the respondent. He claimed title from one Marimuthu Ammal who was alleged to be the legatee of the property under a will executed by the deceased Saradambal. The learned District Munsiff of Chidambaram dismissed his application and the petitioner seeks to revise the order of dismissal.

(2.) THE learned District Munsiff held on a consideration of the evidence that the petitioner was in possession of the house at the time of the delivery to the respondent in execution of his decree. He however held that the petitioner's right was affected by the rule of lis pendens contained in Section 52 of the Transfer of Property Act and he was therefore not entitled to any relief. He arrived at this finding on the following facts:

(3.) THE relevant provisions of the Code are contained in Order 21, Rules 100, 101 and 102. The petitioner is certainly a person, other than the judgment -debtor who has been dispossessed of Immovable property by the holder of a decree for the possession of such property and was therefore entitled to present an application under Order 21, Rule 200 of the Code. Under Rule 201, where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment -debtor, it shall direct that the applicant be put into possession of the property If this rule stood alone, there can be no doubt whatever that the applicant was entitled to be put back in possession of the property because he was certainly in possession of the property on his own account claiming, as he did, to be the owner of the property by virtue of the sale deed which he obtained from Marimuthu Ammal. He was certainly not in possession on account of the judgment -debtor. But Rule 202 is to the following effect: