MUNISHI CHINA DANDASI Vs. MUNISHI PEDDA TATIAH

JUDGEMENT

(1.) The appellant, who is the plaintiff in the suit, purchased certain lands in a court sale upon a mortgage decree. He alleged in the pLalnt that he obtained delivery of this property through Court but that he was dispossessed a month later by the defendant. He now sues to recover possession of the property from the mortgagor (defendant) and for an injunction against further interference by the latter.

(2.) The suit was dismissed in the first Court on the ground that the sale was invalid, and on appeal the District Judge confirmed the District Munsif s decree. It was also found that the plaintiff had not obtained possession of the lands in suit and that his allegation of trespass was untrue. In second appeal it is contended that the defendant is debarred by res judicata from questioning the correctness of the sale and also that he is debarred under S? 47, C.P.C., from raising a question relating to execution in this suit.

(3.) It appears that after the sale took place the defendant appealed under Order 21, Rule 89 to have the sale set aside on making a deposit as required by that rule, and that he was unsuccessful in that application. Afterwards he applied under Rule 90 of the same Order to.have the sale set aside on account of irregularity and fraud, and upon this the order of the executing Court was that his application Was too late. The defendant s contention is that the lands described in the sale certificate given to the auction purchaser (plaintiff) are not either included in the mortgage or in the decree passed in the mortgage suit, and that this is so, has not been seriously disputed. The appellant s pleader urged that the defendant having once applied to have the sale set aside and having failed was bound by res judicata from raising the contention that the sale was invalid even though his application was dismissed upon the ground that he was out of time without a determination of the question relating to the validity of the sale. He has however failed to show us how this case comes within the rule of res judicata as defined in Section 11, C.P.C. It is quite clear that there was no adjudication upon the substantial question raised in the defendant s petition as to the validity of the sale and therefore it cannot be deemed to have been a matter directly and substantially in issue in any prior proceedings.