HARIHARAN PATTAR Vs. PACHUVEETTIAL NARAYANA MENON

JUDGEMENT

(1.) The appellant before me is the decree-holder. The decree-holder was the first mortgagee and defendants 1 to 15, members of a joint Hindu family, were the mortgagors. Defendant 16 who is the respondent in this appeal, was impleaded as claiming to be a puisne mortgagee in possession. He put in a written statement, but remained ex parte and his mortgage was not recognized by that decree. The decree-holder obtained his final decree on 12 July 1924 and on 26 November 1925, applied for sale of the property in pursuance of the final decree. The sale was not made subject to respondent's mortgage. Defendant 15 with a view to delaying the execution went on filing various applications, but they were dismissed. The sale was held on 23 June 1926 and the property was purchased by the decree-holder, the appellant. After the sale, defendant 16 filed E.A. No. 797 of 1926 to have it set aside. The hearing of the petition was adjourned several times, one of the reasons being the petitioner's supposed ill health and the Court finally ordered that no further adjournments would be granted and that if his illness was likely to continue he must get himself examined on commission. Finally for default of appearance, his petition was dismissed and the sale was confirmed on 7 October 1926, the confirmation having been delayed by defendant 16 for about four months by various petitions. He then applied to have the order dismissing E.A. No. 797 of 1926 set aside. Again, after a number of adjournments obtained by him the petition was dismissed on which he took up a first appeal and a second appeal to the High Court which were also dismissed. Failing in all his proceedings he then put in an application under Order 21,. Rule 100, for possession of the property from the purchasing decree-holder. It is important to look at his prayers in this petition. They were three in number: (a) Directing re-delivery of all properties delivered under the sale certificate, along with the crops thereon for Kanni 1102 which are to be harvested through amin to the petitioner and if the Court finds that there is no reason for it,, granting permission to the petitioner to harvest, the same; (b) directing the counter- petitioner not to harvest the remaining crops till the decision of this petition; (c) directing the counter-petitioner to pay the aforesaid 450 paras of paddy in case he did not harvest, the remaining harvests and 1,500 paras of paddy in case he should harvest the same and also the cost of this petition with interest thereon to the petitioner.

(2.) It is perfectly obvious that he could not possibly get re-delivery of the property in an application as a party under Section 47 in the teeth of the decree to which he had been a party under which the land has been sold and the sale to the decree-holder confirmed. There was therefore no use coming forward with an application for delivery of possession under Section 47. The only section which talks about getting back possession in execution proceedings in such circumstances is Order 21, Rule 100, and he consequently tried to come under that section. When it was obvious that he could not possibly get re-delivery of the land he appears to have asked the Court that he might be given the alternative relief as regards crops as a party under Section 47, Civil P.C. The learned District Munsif has written an order with which I entirely agree. In that he states that he could not entertain it in that petition which had been deliberately put in to recover possession under Order 21, Rule 100. He says: On this preliminary ground this petition must fail and the petitioner may agitate the other question if so advised in a properly framed petition or may avail of the proper remedy in such cases, that is the petition as regards some claim for crops. The petitioner refused to do this. In para. 10 of the counter-affidavit he put in in C.M.P. No. 4066 of 1926 of this Court, he said that "no question of amendment arises." He proceeded further to appeal against the order of the District Munsif and again the ground raised in the appeal related to the recovery of possession of the land: Vide grounds 3 and 4 in which he reiterates his claim for possession. The lower appellate Court said that the point is not seriously pressed before him. Of course, not because it was obviously not untenable. But the learned Subordinate Judge apparently, on the ground that there was an alternative prayer under Section 47, with regard to crops, thought that he was entitled to the value of the crops at the time of the delivery and remanded the petition to the District Munsif for fresh disposal. Against this the present appeal has been filed.

(3.) As I said, I am entirely in agreement with the original order of the District Munsif that the execution petition having been primarily preferred under Order 21, Rule 100, because that is the only section in the Code under which possession of property can be given to anybody other than the purchaser, appellant could not ask for a different and inconsistent relief in that petition. In fact it is doubtful whether there was any alternative asked for by him. In his petition he asks in Clause (a) that if the Court finds it impossible to re-deliver the land it should grant him permission to harvest, that an injunction should be granted against the counter-petitioner not to harvest the remaining crops (Clause b) and that in case the appellant should harvest he should be directed to pay the damages thereof (Clause c). The petitioner was given every chance by the learned District Munsif for putting in a petition under Section 47 with regard to the crops but he refused to do so. On the other hand he came to the High Court, said no amendment was necessary, and proceeded to fight out his preposterous claim to upset in execution proceedings the decree granted against him. So long as he stuck to Order 21, Rule 100, admittedly no appeal would lie and his appeal petition should have been rejected. The order of the learned Subordinate Judge must be set aside and the order of the District Munsif restored. As I feel no doubt that the respondent is not going to end his endeavours to harass the decree-holder, I think I may express an opinion here on some pure questions of law which may shorten future proceedings. Under Section 65, Civil P. C, and Section 8, T.P. Act, a purchaser in a Court sale is entitled to the property from the date of the sale and not from the date of the confirmation thereof: see decision in Bhawani Kumar v. Mathura Prasad Singh (1913) 40 Cal 89,