SAMBANDA MUDALIAR Vs. MUTHUSWAMI MUDALIAR

JUDGEMENT

(1.) THIS appeal is directed against the order passed by the Subordinate Judge, Tirupattur, allowing the application to remove the obstruction, under 0.21, R.97, C.P.Code.

(2.) THE facts which are necessary for the disposal of this appeal are briefly as follows: THE respondent filed a suit on mortgage in O.S.No.106 of 1971 on 20-12-1971 and obtained a preliminary decree on 29.2.1973. THE final decree was passed on 30.10.1973. THE mortgaged property was brought to sale in execution of the said decree in court auction and the respondent purchased the same on 19.9.1973. THE sale was confirmed on 29.10.1973. When the respondent came to take possession of the property on 24.12.1973, the appellant herein obstructed the same.

(3.) LEARNED counsel for the appellant relied on the decision of a single Judge of this Court reported in Rajagopala Naicker v. Jayaramq Naickerand others, 1974 T.J.L.N. J. 455, where Ramaprasada Rao, J., as he then was, relied on the decision in Nagendra v. Lakshmi, 65 M.L.J 108: 38 L.W. 169: A.I.R. 1933 Mad. 583 (F.B.), and held that whoever comes first will be served first. The learned counsel relied on the said decision and submitted that in view of the fact that the appellant herein purchased the property admittedly at the. first instance and got possession through court, he is entitled to the property and the subsequent purchaser cannot ask for removal of obstruction. Further, the purchase was through court and it is not affected by the doctrine of lis pendens under S.52 of the Transfer of Property Act. The learned counsel for the respondent drew my attention to the earlier decision rendered by this Court in a case between the same parties in the same matter, in C.R.P.No.3288 of 1974. Relying on the ruling in Subba Rao v. Venkateseshacharlu, 61 L.W. 535: A.I.R. 1949 Mad. 207: (1948)1 M.L.J. 128, it was held that the rival contentions between the parties ought to have been decided in the execution petition and not relegated to a separate suit in view of the amendment of S.47, C.P.C. In Haman-drai Badridas v. D.B. Prasad, A.I.R. 1973 S.C. 2423: (1973)1 S.C.C.R. 912, the same view was affirmed. The learned counsel for the respondent submitted mat the decision reported in Nagendran v. Lakshmi, 38 L.W. 169: 65 M.L.J. 108, referred to in Rajagopala Naicker v. Jayarama Naicker and others, 1974 T.L.N.J. 455 is in respect of purchase by two different mortgagees and in that connection it was held that the deciding factor is priority in date of sales and not dates of mortgage. That is not the case between a simple money decree holder and a mortgage decree holder and the sale in pursuance of the same. The said decision was also rendered before the amendment of the Civil Procedure Code. The decision in Nagendran v. Lakshmi 38 L.W. 169: 65 M.LJ. 198 has no application to the facts of this case, as the dispute was between two mortgagee-decree-holders and it was not brought to the notice of the single Judge of this Court while the decision was rendered in Rajagopala Naicker v. Jayarama Naicker and another, 1974 T.L.N.J. 435. On the other hand the learned counsel for the respondent submitted that in the decision rendered by this Court in the above quoted C.R.P. between the same parties reliance was placed on the earlier decision of the Privy Council reported in Jadunath v. Parameswar, A.I.R. 1914 P.C. 11, where it was held: