RAMANUJA NAICKER Vs. SOLAIAPPA NAICKER

JUDGEMENT

(1.) The appellant assignee decree-holder is the purchaser of 17 properties in a mortgage suit O.S. No. 68 of 1919 at a sale dated 24 March, 1924. The 1st respondent is the purchaser of 7 of these properties under a previous Court sale dated 18 December, 1923, for a simple debt due by the same debtor. The 1st respondent on 16 June, 1924, by E.A. No. 90 of 1924 applied to the Court executing the mortgage decree to set aside the sale to the appellant alleging (1) material irregularity in conducting and publishing the sale, and (2) that the preliminary mortgage decree had been previously satisfied by the mortgagors themselves and that the subsequent assignment of the decree and execution sale were conducted fraudulently in collusion between the assignee decree-holder and judgment-debtors in the mortgage suit in order to defeat the respondent. Apparently, being advised that the latter objection could not be heard in execution, the 1 respondent applied by E. A. No. 138 of 1924 to treat the second ground of his former petition as a suit under Section 47 (2). The Subordinate Judge dismissed E.A. No. 138 of 1924 on 5 September, 1924. He refused to treat E.A. No. 90 of 1924 as a suit but left it to the 1 respondent to file a suit if he was so advised on the ground of fraud. On 7 October, 1924, he dismissed E.A. No. 90 of 1924 so far as it alleged material irregularity on the ground that no irregularity in publishing or conducting the sale was proved. The 1 respondent did not pursue the order of 5 September, 1924, in appeal or revision but appealed to the District Court against the order of 7 October, 1924, which he was entitled to do as the order was one relating to the execution, discharge or satisfaction of the decree and according to the decisions both appellant and the 1st respondent are representatives of the parties to the mortgage-decree. At the hearing of the appeal on 4 February, 1928, the only question which gave rise to the appeal, i.e., whether the sale to the appellant was vitiated by material irregularity in publishing and conducting it, was abandoned by the 1 respondent. But the District Judge was asked to set aside the order of the Sub-Judge, dated 5 September, 1924, refusing to convert the petition into a suit so far as it was founded on fraud. The learned Judge though aware of the fact that there was no appeal from that order and that it was not one relating to execution, discharge or satisfaction of the decree, considered that it was merely an interlocutory matter arising in the main petition which was the subject-matter of appeal and that therefore he had power to order the conversion and holding that the Subordinate Judge had not exercised a sound discretion ordered the conversion of the petition E.A. No. 90 of 1924 into a suit. The present appeal is against that order.

(2.) The 1 respondent took the preliminary objection that no appeal lies from an order merely allowing the conversion of an execution petition into a suit as permitted by Section 47 (2) of the Civil Procedure Code, for the reason that the order though passed under Section 47 is not one relating to the execution, discharge or satisfaction of the decree: Somu Aiyar V/s. Chelliah Pillai (1929) 30 L.W. 230. But the answer is that, the Lower Court having on 1 respondent's own invitation exercised the power to set aside the order of the Subordinate Judge on the footing that it is involved in the appeal under Section 47, he cannot now turn round and say that no appeal lies at appellant's instance to correct the error: Latchmanan Chetty V/s. Ramanathan Chetty (1904) I.L.R. 28 M. 127 : 14 M.L.J. 436. This objection fails.

(3.) I doubt whether the learned Judge had any jurisdiction to set aside the order of 5 September, 1924. There could be no appeal from it and the learned Judge had no power of revision. In any case I think the learned Judge should not have interfered with the order of the Subordinate Judge of 5 September, 1924, nor was it a case in which "he ought to have, of his own accord, made an order under Section 47 (2). That sub-section is intended to prevent the inconvenience and injustice caused by the discovery sometimes made after proceedings in Court have gone on for a long time or as a result of the decision of an appellate Court that the proceeding had originated in an erroneous form by a bona fide, mistake by petition when it should have been by suit or vice versa. It is not intended to save litigants from the trouble of choosing the proper form and filing a plaint or an execution petition when it is discovered in time what is the proper form and there is no further question about the matter. Here the order of 5 September, 1924, clearly informed the 1 respondent, if it was necessary for that purpose, that so far as his attack on the sale was founded on fraud in obtaining the final decree or in executing a decree which had been satisfied, his proper remedy was by suit. The 1 respondent has not questioned the correctness of that view here and did not question it before the District Judge. He had plenty of time to correct his own error and file a plaint if so advised on the ground of fraud. But he did not do so till the decision of the appeal on 4 February, 1928. That appeal was only concerned with the allegation of material irregularity and not with . any allegations of fraud. In the circumstances there was no hardship arising from 1 respondent's failure to file his suit earlier, for which the 1 respondent was alone responsible. It was wrong to say as the learned Judge has done that the Subordinate Judge did not exercise a sound discretion because his decision on the point has never been questioned and is obviously right. The learned Judge seems to have been influenced by the consideration that a suit brought for the first time after 4th February, 1928, on the ground of fraud might be met with a plea of limitation. In the above circumstances the 1 respondent has no one else to thank for this, if it should be so.