S RAMA IYER Vs. RAMACHANDRAN (MINOR)

JUDGEMENT

(1.) In a suit, O.S. No. 241 of 1918, by a puisne mortgagee the appellant bought the property subject to a decree (O.S. No. 322 of 1917) passed to enforce the prior mortgage Subsequently the holders of this latter decree brought the property to sale without impleading the appellant and bought it themselves. The appellant, who had paid Rs. 1,050 for the equity of redemption at his sale, was thus left without any title to the property. He has instituted proceedings in execution in O.S. No 322 of 1917 with the object of having the sale under that decree set aside, but he has failed in both the lower Courts.

(2.) It is conceded before me that the case does not fall under Order XXI, Rule 90, Civil Procedure Code, because there was no irregularity or fraud in the actual conduct of the sale. Indeed if it had fallen under that rule, no second appeal would lie to this Court. Taking it as a case under Section 47 we must, in the first place, consider what the position is which the appellant occupies in that suit. The action proceeded both to preliminary and final decrees and though the second mortgagee, from whom he derived title, was a party he himself was not impleaded. It is stated that some time before the sale was held the decree-holders applied to have him impleaded and that the application was refused. The order is not produced; but it was certainly discretionary to the court so to refuse it. The appellant accordingly is in no better position than any person who, after a decree has been passed against a certain property, takes a conveyance from the judgment-debtor of that property. He is subject to the doctrine of lis pendens and takes upon himself every liability which the decree attaches to the property. Speaking generally therefore, it cannot be, contended that any irregularity arose out of the failure to implead the appellant after the suit proper had terminated and before the property was sold in execution of the mortgage decree.

(3.) There is however, a further aspect to the case. It appears that after the appellant had made his purchase he approached the decree-holders in O.S. No. 322 of 1917 through their mother, they being minors, and expressed his willingness to pay off the decree. For this purpose security would have to be given and the mother seems to have expressed her willingness to comply with this suggestion and not to bring the property to sale. The learned District Judge has accepted this agreement as true and upon it the appellant's learned Advocate has sought to make out a case of fraud invalidating the proceedings in execution. Whatever remedy the appellant may have upon this ground, I am quite clear that it cannot be by setting aside the execution proceedings. The agreement amounted to acceptance of a proposal to adjust the decree, and even had it been carried out Order XXI, Rule 2, Civil Procedure Code, would have prevented such action, unless it had been certified to the Court, from affecting the course of execution. A somewhat similar case was dealt with by a Full Bench of the Calcutta High Court in Lakshan Chandra Naskar V/s. Ramdas Mandal 118 Ind Cas. 857: 57 C. 403 : A I.R. 1929 Cal. 374 : 49 Cr. L.J. 441 : 33 C.W.N. 795 : Ind.Rul (1929)Cal. 681(F.B.). It was a case of an alleged adjustment of the decree and the learned Judges expressed the view that the defendant could obtain no relief under Section 47 though it may be that he could bring a suit for damages for the decree-holder's breach of contract or for recovery of the money paid under the adjustment; they were not questions of execution of the decree nor were they proper to be raised in a court whose duty is confined to executing the decree: they might, in some wide sense, be questions "relating to the discharge or satisfaction of the decree", but they were not within the meaning of those words as used in Section 47. Similarly in the present case, it may be that the appellant could have proceeded against the decree-holders or their mother on the footing that breach had been committed of an out-of- court agreement not to bring the property to sale, but the matter is not one which can properly be brought within the terms of Section 47, Civil Procedure Code.