N K M MEYYAPPA CHETTI Vs. VKMMEYYAPPANCHETTI

JUDGEMENT

(1.) The order under appeal was passed on an application tinder Order XX Rule 97, Civil Procedure Code, by respondent, assignee of a decree in a suit in ejectment, for removal of the obstruction to delivery in execution, raised by appellant, second respondent in the lower Court, and his son, third respondent, now deceased, whom he represents. Appellant claimed the property in virtue of a purchase, valid, as he contends, against respondent, noth withstanding that it was pendente lite. We have to decide whether an appeal lies against the lower Court's order removing his obstruction and, if so, whether that order was right on the merits.

(2.) Orders of removal are appealable, if passed under Order XXI, Rule 98, against the judgment debtor or an obstructor at his instigation, But the Utter description does not necessarily apply to a person, who, like appellant, merely relief on a title derived from the debtor, Such a person will, if his good faith is established, be maintained in possession under Rule 99 unless, with reference to Rule 102, the transfer to him was after the institution of the suit in which the decree was passed, Rule 103 deals with the further remedy open to the unsuccessful party by suit or appeal, but not exhaustively, For it has been held in Meyyappa Chetty V/s. Chidambera Chetty (1) 61 Ind. Cas. 349 : 39 M. L. J. 603 : 12 IL. W. 273, (1920) M. W.N. 562. and Veyindramuthu Filial V/s. Maya Nadan (2) 58 Ind. Cas. 501 : 43 M. 698 (1920) M, W. N 299, 39 M. L. J. 456 : 28 M. L. T. 312. that this rule does not exclude an appeal, if one is authorised by Section 47. These decisions were no doubt given in cages of delivery to the purchaser in execution, not to the holder of a decree in ejectmant like respondent; and in the second, the obstructor relied on a purchase at Court-sale, in execution of a different decree, not, as here, on a private conveyance, But, although these facta may be material in connection with the merits of the appellant's claim, they justify no distinction against the application of these authorities; and in fact in the penultimate paragraph of my judgment in Veyindramuthu Pillai V/s. Maya Nadan (3) 54 Ind Cas. 200 43 M. 107 : (1919) M. W N 881 : 28 M. L. T. 391 : 38 M. L. J. 32,, when it was before a Fall Bench, the position of a decree-holder purchaser in execution of another decree and of a stranger purchaser, whether in execution or private sale, were expressly treated as the same,

(3.) But, whilst these authorities justify an obstructor pleading a conveyance from the judgment-debtor in proceeding after an order removing his obstruction by appeal under Section 47 and not by suit, that only means that in order to have been appeal heard on its merits and to have an adjudication on his paramount right to possession against the purchaser he must first satisfy the Appellate Court that he is a party or the representative of a party to the decree; and not the less so, because in many cases, of which this is one, that adjudication and the decision whether he is entitled to proceed under Section 47 will rest on the same foundation. In the present case it no doubt appears that appellant was for a short time on the record of the suit in which the decree was passed as 105 defendant. But he was impleaded without notice and his name was removed without his participating in the proceedings. His case, therefore, resembles Gadicherla China V/s. Gadicherla Seetayya(4) 21 M. 45 : 7 Ind Dec. (n. s.) 383 not Remaswami Sastrulu V/s. Kameswaramma(5) 23 M, 36l : 10 M. L. J, 126, 8 Ind. Dec. (N. S ) 653. and we mast, therefore, decide whether he is a proper party to proceedings under Section. 7 in the other character on which he relies as the representative of a party to the decree. That in, whether his conveyance of the suit property is for the present purpose valid. His connection with the property is alleged as originating in. Exhibit I, a sale by 5Cth defendant on 4 September 1901 to the sons of Nainar Mahomed, of whom one is 71st defendant, and Exhibit II, a sale by them to him on 3 October 1901. These sales were, it is not disputed, pendente lite, the plaint in respondent's suit having been presented on 2nd August 1901 and registered on 3 September 1901, the day before the former document, The lower Court has, however, found, and these findings are not disputed, that 50th defendant had already on 2 December, 1896 given Nainar Mobamed, who died before the suit, a registered agreement to sell, Exhibit 111, although possession did not pass to the latter or his cons, but only later to appellant. The contention is that appellant's title relates beck to the date of Exhibit III and is, therefore, unaffected by the doctrine of lis pendens.