BHIMAJI RAMCHANDRA WADWADGI Vs. BHIMABAI HIROJI SANAGAR

JUDGEMENT

(1.) The facts which have given rise to this appeal under the Letters Patent are these: One Hanma was the original owner of the land (Survey No. 142) now in dispute. He sold it to Nagappa in 1885. Nagappa mortgaged it along with other properties to Mudiappa in 1888. It was a simple mortgage. The mortgage was assigned to Basappa, the nephew of Mudiappa at a family partition. Basappa filed Suit No. 574 of 1900 to enforce the mortgage against Nagappa and two other coparceners. Kalappa was joined as defendant No. 4, as it was asserted by Nagappa that he had sold to him the equity of redemption in the land now in dispute. Kalappa did not appear to contest the plaintiff s claim in that suit. Finally, on the 20th April 1901, a compromise was arrived at between the plaintiff and defendants Nos. 1, 2 and 3 in that suit It is not necessary to detail the terms of the compromise it is enough to state that a part of the property in that suit was conveyed to the then plaintiff that a certain amount was made payable to him in instalments and he was allowed the right to recover the amount, in case of default, by the sale of certain properties including the land now in dispute. Shah J. Kalappa was not a party to this compromise. A decree in terms of the compromise was passed on the same day. The decree was silent as to the defendants other than defendants Nos. 1 to 3. Subsequently the property referred to in the decree was sold through the Court and the present plaintiff purchased it in 1904. In attempting to recover possession be was obstructed by Kalappa, who had been joined as a party to the suit, but who had not joined in the compromise and had not appeared to defend the suit. The plaintiff made an application; to the Court to have the obstruction removed. Kalappa was served with a notice under Section 335 of the Code of Civil Procedure of 1882. He filed a statement and claimed to be the owner of Survey No. 142. But he did not appear afterwards and did not adduce any evidence An order was made against him by the Court on the 15th February 1908 removing the obstruction, and directing possession to be given to the present plaintiff. In pursuance of that order the possession was given to the present r. plaintiff on 11th March 1908. The plaintiff filed the present suit to recover possession in 1913 alleging subsequent dispossession in June 1908. In 1910, Kalappa sold his rights to the land to the son of defendant No. 1. The real contest in the suit lay it between the plaintiff and the defendant No. 1, The trial Court allowed the plaintiff s claim with costs. The defendant No. 1 appealed to the District Court which held that Kalappa had purchased the equity of redemption from Nagappa in the year 1891 and had been in possession of the property since then and accordingly dismissed the plaintiff s suit. The plaintiff preferred an appeal, to this Court in which the question as to the effect of the order made in February 1908 against Kalappa was raised. Mr. Justice Heaton who heard the appeal held that the order was made under Section 334 and that it had no finality such as an order under Section 335, if not challenged by a suit, would have. The plaintiff has now preferred the appeal under the Letters Patent, and the same question is raised before us. In view of the arguments which we have heard I have stated the facts with a view to make clear the position of the plaintiff and Kalappa with reference to the land in suit and to the litigation preceding the present suit.

(2.) The question is whether the order of the 15th February 1908 was made under Section 334 or Section 335 of the Code of Civil Procedure then in force. It is urged on behalf of the appellant that Kalappa was not a judgment-debtor that he claimed to be entitled to retain possession of the land in suit on the ground that ho was the owner, and that the order cannot be referred to Section 334 as the obstruction was not offered by Kalappa on behalf of Nagappa, but on his own account. On the other hand, it is urged that the order is based upon the ground that Kalappa was a party to the suit and bound by the decree against Nagappa and others and that though in fact not a judgment-debtor he was treated as such by the Court making the order and that the order should, therefore, be referred to Section 334. It is further urged for the respondent that as Kalappa was not a party to the decree the decree and the subsequent proceeding, so far an they relate to the land in emit, are nullities, that Kalappa is in no way bound thereby and that he was entitled to ignore the order under Section 335 as a nullity, even if the order be treated as having been made under that section. Mr. Sirur has relied upon Malkarjun v. Narhari (1900) L.R. 27 I.A. 216 : 2 Bom. L.R. 927 and Khiarajmal v. Daim (1904) L.R. 32 I.A. 231 : 7 Bom. L.R. 1 in support of Ids argument that the order under Section 335 could be treated by Kalappa asa nullity.

(3.) On a consideration of these arguments and the admitted facts, in the case, I am of opinion that the compromise decree was not binding upon Kalappa, as he was not a party to the compromise, that he was not a judgment-debtor as there was no decree against him, and that the application by the auction-purchaser for the removal of the obstruction caused by Kalappa was clearly covered by Section 835. It could not be referred to Section 334 as the obstruction was not by a judgment-debtor or any person claiming on his behalf. Whether Kalappa then claimed as a purchaser from Hanma, the original owner, or merely as a purchaser of the equity of redemption from Nagappa, he claimed to be entitled to possession in his own right. The mortgage on which the consent decree was based was a simple mortgage and there was no question of possession as between the decree- holder and the judgment-debtors. It arose for the first time between the auction- purchaser and Kalappa. The notice was issued to Kalappa under Section 335 and though the reason given by the Court making the order that Kalappa was a party to the suit and was therefore bound by the decree was wrong, I do not see how the order could be referred to Section 334 on the admitted facts of the case. Kalappa did not appear to oppose the application nor did he adduce any evidence in support of his allegation as to the ownership of the land in suit. The order for the removal of the obstruction and for possession made by the Court was almost inevitable under the circumstances and could have been properly made only under Section 335. The Court did not refer to any section of the Code under which it purported to make the order, and I think we ought to treat it as having been made under the section under which alone it could have been made under the circumstances. The fact that the auction-purchaser applying to have the obstruction removed and the Court making an order were under a misapprehension as to the effect of the decree on Kalappa s position is not a sufficient ground, under the circumstances to treat the order as having been made under Section 834. On the other hand we have the fact that the notice was issued under Section 335 and that Kalappa claimed as owner in his own right. No suit having been filed by Kalappa to challenge the order, it would become final under Section 335, and would be a complete answer to defendant No. 1, who claims under Kalappa.