JAINULABDIN SAHHIB Vs. KRISHNA CHETTIAR

JUDGEMENT

(1.) The point taken before us in this Second Appeal for the defendant-appellant is, that the plaintiff's suit is barred by Section 47 Civil Procedure Code, his only remedy being an application under that section. It was not taken in the Lower Courts but as it is a question of law arising on the facts found, we have allowed it to be raised.

(2.) The facts relevant for the argument are these. One Rangan Pattar obtained a mortgage decree against the plaintiff; the properties were sold in Court auction and one of the items was purchased by the present defendant who was a stranger to the mortgage suit and to the decree. A sale certificate was issued to him and he obtained a delivery order. In execution of that order he got possession of plots A, B and C. This was about Hi years ago. It is the plaintiff's case that plot C alone was included in the decree and in the sale certificate, and was delivered to the defendant, and that the defendant subsequently trespassed on the plots A and B which are the subject matter of the present suit; he now sues to recover them. The defendant pleaded that all the plots were included in the Court sale and in his certificate, and that he got possession of them all properly through court and that he was entitled to them. The Lower Courts have found that the alleged trespass is untrue and that the plaint plots were delivered to the defendant by the Court amin. They have however also found that plots A and B were not really included in the mortgage deed or in the decree or in the sale certificate or in the delivery order, which all contained the same description of the property as to boundaries and measurements. The amin's mistake in delivering them to the defendant arose from a mistake in the measurements in the documents and the plots really belonged to the plaintiff. Applying Art. 144 of the Limitation Act, the lower Courts held that the plaintiff was not barred by limitation and gave him a decree for the plots.

(3.) Mr. Menon for the defendant-appellant contends that on the finding, this is a claim by the judgment debtor under a mortgage decree for the recovery of property overdelivered in execution to the court auction-purchaser, and, as such, this is a case to which Section 47 Civil Procedure Code applies even though the purchaser was a stranger to the mortgage suit. He urges that the present suit is thus barred by the section and should have been dismissed. If the section applies there can be no doubt that the plaintiff's claim must fail whatever the merits may be, for the suit cannot be treated as an application under Section 47 Clause (2) with any advantage as it will then have to be dismissed in limine as barred by limitation.