AMMANI AMMAL Vs. K.P. SABAPATHI PILLAI

JUDGEMENT

(1.) THIS appeal arises out of proceedings in execution. The plaintiff filed a suit on a mortgage to recover the mortgage amount by sale of the hypotheca. The mortgage had been executed by the first defendant for himself and as guardian of his two sons, the second and third defendants. Among the other defendants who were impleaded, the sixth defendant, who is the mortgagor's paternal uncle's son's widow, was impleaded on the ground that she was living in one of the two houses which formed the subject -matter of the mortgage. She in defence set up her own title to that house, namely, house No. 48 claiming that it had fallen to her deceased husband's share in a partition which took place prior to the date of suit. The first issue framed in the suit related to the claim of the sixth defendant. The learned Subordinate Judge who tried the suit considered it unnecessary to decide the question of paramount or hostile title raised by the sixth defendant and leaving that question open he granted a preliminary decree in favour of the plaintiff for the entire suit amount. The preliminary decree directed all the defendants to pay the amount decreed and contained the usual Clause relating to the sale of the hypotheca or the necessary portion thereof in case the decree amount was not paid by the judgment -debtors. In the preliminary decree, however, a specific Clause was inserted to the effect that the question of title asserted by the sixth defendant to house No. 48 was left open. Subsequently a final decree was passed against all the defendants including the sixth defendant. In that decree the Clause about the reservation of the question of the sixth defendant's title to house No. 48 was not repeated. An execution application was filed by the decree -holder and notices were taken out. The sixth defendant refused the notice and consequently the amin affixed it. The Subordinate Judge made a note of this on 25th January, 1940, and declared that the defendants were absent. Thereafter the terms of the proclamation were settled and on 12th February, 1940, an order was made to proclaim and to sell the hypotheca on 3rd April, 1940. On that date the suit property was purchased in Court auction by the decree -holder himself and set off in part satisfaction of the decree amount. The sale was confirmed on 20th June 1940, and part satisfaction entered. Thereafter a sale certificate was granted and when attempt was made to take delivery there was obstruction on the part of the sixth defendant. On an application made by the decree -holder an order was passed that delivery should be made after removing the obstructions and accordingly delivery was effected. Thereupon the sixth defendant filed E.A. No. 1048 of 1940

(2.) E .A. No. 139 of 1943 in the Court below under Section 47 of the Code of Civil Procedure to set aside the order of delivery and to direct re -delivery of the property to her. That application was dismissed by the District Judge and the present appeal is against that order of dismissal.

(3.) THERE seems to be no doubt whatever that the appellant is a judgment -debtorwithin the meaning of Section 2(10) of the Code of Civil Procedure as a final decree capable of execution has been passed against her. It has been held in the unreported Full Bench decision Since reported in : (1947)2MLJ468 cited above that to such a case Article 166 applies and that even if the sale is a nullity and the judgment -debtor has no saleable interest, if the petitioner is a judgment -debtor he must get the sale set aside within thirty days. In the present case I have already mentioned that the sale was held on 3rd April, 1940, while the application to set aside the order of delivery and to re -deliver the property was made on 12th October, 1940. In view of the Full.Bench ruling the application was highly belated and consequently barred by limitation. Upon this finding the appeal falls to be dismissed, and in view of this finding I do not consider it necessary to examine the question of constructive res judicata or any of the other questions raised on either side.