KASIRAM SOWCAR Vs. VEDACHALA CHETTI

JUDGEMENT

(1.) THE view of the learned District Judge that the proceeding between the parties, although filed as an original suit, should more properly have been treated as a proceeding under Section 47 of the Civil Procedure Code, inasmuch as the plaintiff was himself an exonerated party in the earlier suit out of which the claim arose, is unquestionably correct It is urged before me that a bar to so treating the suit, namely, as a claim petition by a party under Section 47, is that a previous claim petition had been filed by the present plaintiff and dismissed. It appears to be correct that an application of this charater was filed on the 1 May 1928 and the order of the District Munsif upon it shows that it was dismissed as belated, the observation being made at the same time that a previous order had been passed that the sale would be at the decree-holder's risk subject to any claim which the plaintiff might succeed in establishing to the property. THE learned Subordinate Judge has relied upon Saharabi V/s. Ali 72 Ind. Cas. 857 : 17 L.W. 182 : 44 M.L.J. 141 : A.I.R. 1923 Mad. 295 for the view that an order in these terms was not an order against the claimant, but that case differs from the present inasmuch as in it no order dismissing the petition was passed. Orders similar in general terms to the present one are those dealt with in Ramalingayya V/s. Narayanappa and the Full Bench decision in Venkataratnam V/s. Ranganayakamma 48 Ind. Cas. 270 : 41 M. 985 : 8 L.W. 292 : 24 M.L.T. 197 : (1918) M.W.N. 599 : 35 M.L.J. 335 (F.B.). It must be held, I think, accordingly that the court had already passed an order dismissing a claim petition of the present plaintiff. THE same circumstances, however, were present in the case reported as Venkatakrishnamacharlu V/s. Krishna Rao 4 Ind. Cas. 723 : 32 M. 425, and the contention that in such circumstances a suit cannot be treated as an application under Section 47 because already a similar application under that section had been dismissed was disallowed. I have not been shown that this case is not good law so far as this Court is concerned, and it being the decision of a Bench I have to follow it. I conclude accordingly that there is no obstacle to treating the suit as an application under Section 47 and to disposing of it accordingly. In these circumstances it is unnecessary to consider what would be the legal effect of the defendant having engaged to bring the property to sale at his own risk. But I think it is clear that no such undertaking can affect the procedure which it was open to the plaintiff to adopt in order to secure his remedy.

(2.) THE C.M.A. is therefore dismissed with coats.