M CHIMPRAMMA Vs. P SUBRAHMANYAM

JUDGEMENT

(1.) This is a Letters Patent Appeal against the Judgment of Panchapagesa Sastri J. dismissing the appeal filed against the judgment of the learnt d Subordinate Judge of Bapatla confirming that of the District Munfif of Orgole in a suit for declaration and injunction, or in the alternative for possession. The 1st defendant obtained a decree against the 2nd defendant in Small Cause Suit No. 617 of 1936 on the file of the District Munsif's Court, Ongole.

(2.) In execution of that decree, the plaint schedule property was attached and brought to sale. Before the sale the 3rd defendant preferred a claim petition E. A. No. 787 of 1941 setting up title to the same. Though the judgment-debtor was made a party to the application, no notice was taken to him. Arguments in the claim petition were heard on 21-7-1941 but orders wereptonounctd only on 25th July, 1941 allowing the claim. On 21-7-1941, notwithstanding the pendency of the claim petition, the auction sale was held and the 1st plaintiff purchased the property. On 19-8-1941, the 3rd defendant filed an application under Section 151 C. P. C. praying that the sale may be cancelled but that was dismissed by the learned District Munsif on the ground that it was not maintainable under Order 21 Rules 89 to 91 C. P. C. Again, on 8-1-1942, the 3rd defendant filed another petition requesting the Court not to confirm the sale but that was also dismissed on 26-1-1942. After the auction purchaser had taken delivery of possession, the 3rd defendant filed another application under Older 21 Rule 100 C. P. C. praying that the court should not record the delivery said to have been effected or that it should direct re-delivery of the property to the 3rd defendant if the property was found to have been delivered to the auction puchaser. That petition was dismissed on the ground that, on the allegations in the petition, it was not maintainable.

(3.) Thereafter, on 25-10-1943, the 1st plaintiff and his lessee the 2nd plaintiff filed the aforesaid suit for declaration of the 1st plaintiff's title and for in injunction against the 3rd defendant and other. The court below held that the order on the claim petition would rot debar the 1st plaintiff from setting up his title based on the Court sale as the judgment- debtor was not a party to the claim. This conclusion was arrived at on the ground that the auction purchaser was only the representative of the judgment-debtor and that when the judgment-debtor himself, not being a party to the claim order was not bound by it, his representative also could not equally be bound by it. There is a long catena of cases holding that a judgment-debtor, who was not a party to the claim proceedings, is not bound by the order made therein. But, a Division Bench or the Madrrs High Court in Vein Padayachi v. Arumugum Pillai held that, under similar circumstances, the auction-purchaser was bound by the claim order though the judgment-debior v as not a party 10 the proceedings. The reason for the decision is expressed at page 401 as follows : "But ordinarily, it is the decree-holder's right to bring the property to sale against the claim of the claimant's right to have "the property released (or sold subject to the claimant and the claim) which are litigated in such a petition. The auction-purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year l not because the purchaser is the represen . tative of the decree-holder but because the order which established the right "of the decree holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the legislature to have the effect of precluding the claimant from putting forward his claim again in opposition to the auction purchaser at the sale held in pursuance of the order against the claimant The conclusive establishment of the decree-holder's right to bring the property to sale free from the claimant's alleged encumbrance involves the right of the purchaser at the sale to get a title to the property free from such encumbrance.