KOMMANA BANGARAMMA Vs. MARKONDA CHINNAM NAIDU

JUDGEMENT

(1.) As the question involved in this Appeal is of importance, it may be posted before a Bench expeditiously.

(2.) Kuppuswami, J. - The respondent herein was the tenant of a premises used for shops situated on the main Road of Parvathipuram belonging to two persons, Sanyasi Setti and Sanyasiraju. he was in possession as tenant for a very long time. One kamaraju filed a suit, O.S. No. 61 of 1952 on the file of the Subordinate judge's Court, Srikakulam against the landlord and obtained a decree. In pursuance of the decree, the decree-holder filed E.P. No. 102 of 1955 and brought the properties to sale. One Kommana Swamy purchased the properties on 6-7-56 for a sum of Rs. 6,700/- in court auction. He there upon filed E.A. No. 231 of 1956 under Order XXI Rule 95 of the Civil Procedure Code for delivery of the property as a tenant, obstructed delivery of the property contending that he was entitled to possession under the provisions of the Madras Buildings (Lease and rent Control) Act. The auction purchases there upon filed a petition E.A. 300/56 under Order XXI Rule 99 of the Civil Procedure Code. That Application was allowed on 15-2-57 and the respondent was directed to vacate the said building. There respondent there upon filed O.S. 59 of 1957 on the file of the District Munsif's Court, Parvathipuram under Order XXI Rule 103 of the Civil Procedure Code to set aside the said order. The learned District Munsif by his judgment dated 8-4-58 held that the plaintiff was a tenant of the suit property and he could be evicted in execution proceeding in view of the provisions of the Madras Building (Lease and Rent Control) Act. He also held that he was estopped from raising the said pleas by his conduct or by waiver. He overruled the objection that the suit was barred under Section 47 of the Civil Procedure Code on the ground that the respondent was the representative of the Judgment debtor. A case of surrender put forward by the auction purchaser was also found against. In the result, he set aside the order of the Sub-ordinate Judge passed on 15-2-57. Before the judgment was delivered, the auction purchaser seemed to have obtained delivery on 21-10-57 in pursuance of the order dated 15-2-57 and taken actual possession of the suit property. though the suit was filed merely for setting aside the order of the Subordinate Judge, the learned District munsif took into account the subsequent event, viz., that the plaintiff had lost possession of the suit property and the defendant has taken possession of the same in execution proceedings. He therefore considered in the interests of justice that the status quo had to be maintained and the defendant had to deliver back possession of the property. In the result, he passed a decree setting aside the order passed by the subordinate Judge, Srikakulam in E.A. 300 of 1956 in E.A. 231 of 1956 in E.P. No. 102 of 1955 and also directed the defendant to deliver back possession of the suit property to the plaintiff. 2. The defendant carried the matter in appeal in A.S. No. 117 of 1953 to the Subordinate Judge"s Court, Sri kakulam. The learned Subordinate Judge allowed the appeal on the view that the plaintiff having been a tenant of the judgement-debtor long before the court sale in favour of the defendants, he is a representative of the judgement debtor and therefore the order dated 15.2.57 ordering removal of the obstruction came within the meaning of Section 47, Civil Procedure Code, and if so Section 47, C.P.C. was a bar to the maintainability of the suit under order XXI Rule 103, C.P.C. In the result, he allowed the appeal.

(3.) The Plaintiff preferred S.A. No. 42 of 1961 to this court. In that appeal it was held that the decision of the court below that the plaintiff is a representative of the judgement-debtor and therefore Section 47 C.P.C. was attracted could be sustained. The decree of the Court below was set aside and the appeal was allowed with costs with a direction that the case should be sent back to the lower appellate court for being dealt with on merits according to law. It was observed by Gopalkrishnan Nair, J, who delivered the judgement, that the facts which were conceded by either side before the lower appellate court at the previous hearing of the appeal by it will be allowed to be re-opened when it hears the appeal again after remand. After the remand, the learned Subordinate Judge by his judgement, dated 21st December 1964 confirmed the judgement and decree of the learned District Munsiff. It is stated in paragraph 7 of the judgement that.