T RAJAMMA Vs. MARRIPADI GOVINDARAJULU CHETTI

JUDGEMENT

(1.) These two second appeals arise out of two suits which were disposed of by a common judgment. S A. No. 337 arises out of O.S. No. 87 of 1965 and S A. 957 arises our. of O.S. 37 of 1962 on the file of the Court of the Subordinate judge, Chittoor. The parties are the same in the two suits. The defendants in O.S. No. 37 of 1962 are the appellants in S.A, No. 337 and the plaintiffs in that suit are the appellants In S.A. No. 957. For convenience sake the parties will be referred to in this judgment as per their array in O.S. No, 37 of 1962 in which evidence was recorded in the trial court. The defendants (In O,S, No. 37 of 1962) filed O.S. No. 87 of 1965 far 3 declaration that the proceedings in O.S. No. 10 of 1948 on the file of the Subordinate judge's Court, Chittoor, are null and void and for a refund of a sum of Rs, 3,782-70 ps. O.S, No. 10 of 1948 was filed by the plaintiffs (in O.S No. 37 of 1962) on the foot of a security bond dated 17-8-1943 executed by the defendants. That security was given in O.S. No. 29 of i943 on the file of the Subordinate Judge's Court, Chittoor, as a security for payment of profits in that suit. In O.S. No. 10 cf 1948 a mortgage preliminary decree was passed on I 1-9-1948 and a final decree for the sale of the mortgage,' property under the security bond on 21-3 1949. In the preliminary decree, to personal decree was given, giving a liberty to the decree-holder to ask for it in case of need. In pursuance of this final decree, the properties were brought to sale in E. P. No. 54 of 1949, and a part of the amount only due under the decree was realised. Subsequently no personal decree was prayed for. Thereafter an attempt was made to attach the movable properties of the sureties. Viz., the present defendants. When that E. P. was filed for the first time, an objection was taken by the Office Itself that was no personal decree to attach the movables. Ultimately the court dismissed that E. P. on the ground that there was no personal decree. Nevertheless the decree-holders, the present, plaintiffs, filed another E. P. No. 75'of 1961 obviously without disclosing the order passed In the earlier E. P. and got an attachment order against the moables of the"def?ndants. When the court Amin went to the house of the defendants to attach the movables, the 1st defendant paid away the amount of Rs. 3782-70ps. due on 19-9-1962, according to the defendants, to avoid embarassment of attachment of movables. The defendants filed the present suit for refund of that amount on the ground that as there was no personal decree that amount was collected by playing fraud on the Court. The defendants filed the;suit on 17-9-1965 i.e after mere than three years from the date of collection of the amount. The trial court dismissed the suit on the ground that the dispute being between parties to the suit in which the decree was passed It should be determined by the Court executing the decree and not by a separate suit as provided under section 47 of the Code of Civil Procedure. In the appeal filed by the defendants, the first appellate Court also dismissed the appeal affirming the view taken by the trial Court. Hence this second appeal by the defendants. As the suit was filed after more than three years from the date ofthe execution under dispute the suit also cannot be converted into a petition under Section 47 of the Code of Civil Procedure as it would be barred by time as the period of limitation for such petitions under section 47 is three years.

(2.) Therefore, the question for consideration in this second appeal, No. 337, is whether the suit is not maintainable on the ground that section 47 C. P. C. is a bar.

(3.) The suit No. 37 of 1962 out of which second appeal No. 957 of 1974 has arisen Is filed to recover possession of property on the basis of the court sale held in pursuance of the mortgage decree passed in O. S. No. 10 of 1948 mentioned above held on 19-12-1949 and purchased by the decree-holders (the present plaintiffs) and confirmed on 20-'-1950. The present suit was fifed on 18-12 1961, which would be after more than three years but within 12 years from the date of the sale. The defence raised by the defendants in the suit is that recovery of possession should have been only by way of filing an execution petition under section 47 C.P.C. within three years from the date of the sale and the suit filed to recover possession does not lie.