V K KELU ACHAN Vs. THANDAVAN CHETTIAR

JUDGEMENT

(1.) The defendant in this suit was a receiver appointed by the High Court under Section 92, Civil P.C. He got a decree in O.S. No. 191 of 1921 on the file of the Additional District Munsif's Court, Palghat, against one Andy Chettiar. The suit was against Andy Chettiar and his father, Samiyappan Chettiar, but Samiyappan Chettiar was exonerated and a decree was given against Andy Chettiar. In execution certain crops were attached. Andy's father, Samiyappan Chettiar, and his second son. Thandavan Chettiar put in a claim petition, and one Ramalinga Ayyar put in another claim petition. Both petitions were dismissed. Ramalinga Ayyar took no further action. But Samiyappan Chettiar and his son Thandavan Chettiar brought this suit to set aside the order of dismissal. The suit was resisted on the grounds; (1) that the suit is not maintainable without the sanction of the Court by which the defendant was appointed a receiver: (2) it was barred under Section 47, Civil P. C, because Samiyappan Chettiar was a party in O.S. No. 191 of 1921, and so a separate suit was not maintainable and (3) the crops attached really belonged to the judgment-debtor, and so the order dismissing the claim should be upheld. The trial Court held in favour of the receiver on all the three points and dismissed the suit, but the appellate Court decided all the three points against the receiver and decreed the suit. The last point being a question of fact there can be no second appeal on it. As regards the rest, this appeal is preferred by the defendant under two points of law.

(2.) I shall take the second point first because it is comparatively simple. The suit of Thandavan Chettiar is admittedly not barred as he was not a party to the original suit. Whether the suit of Samiyappan Chettiar would be barred would depend on whether he was exonerated because he had no interest in the property, and as there was no evidence on this point in the lower Court, I sent for the original records. It is clear from them that he was a proper party to the suit. So the decision in Abdul Sac V/s. Sundara Mudaliar AIR 1930 Mad 817 is not applicable. Goba Nathu V/s. Sakaram Teju AIR 1920 Bom. 223 and U Kala V/s. Ma Hnim U AIR 1927 Rang 137, are quoted for the appellant. But in the former case it was the auction purchaser who was the plaintiff, and the Court held that he was entitled to maintain his suit against the defendants, one of whom was the original judgment-debtor, and the other a stranger, but it expressly holds that the plaintiff brought his suit in his capacity as auction- purchaser, and acquired a different set of rights from those which he had as a decree-holder. U Kala V/s. Ma Hnim U AIR 1927 Rang 137, was a case where the suit was dismissed on the ground that plaintiff was wrongly joined as a party in the previous suit having no concern with it. What has been laid down in this case was followed: Abdul Sac V/s. Sundara Mudaliar AIR 1930 Mad 817. It seems impossible to hold that where the party to the suit is bound by the decree he can evade the rule that disputes in execution must be settled under Section 47, Civil P.C., and not by a separate suit, by joining with a stranger. This would be to defeat the purpose of Section 47,. Civil P.C. The suit therefore by Samiyappan Chettiar is, I consider, already not maintainable for this reason.

(3.) The next point to be considered is whether the want of sanction of the Court with regard to the receiver invalidates the suit by Thandavan Chettiar for his half share of the property. As the plea was not taken in the written statement it is argued that the receiver waived his right. Jagannatha Sanyasiah V/s. Atchanna Naidu AIR 1921 Mad 624, referred to, is a case in which sanction was obtained during the course of trial. It is also argued that the sanction of the sub- Court was sufficient, and that the High Court only directed that the receiver should work according to the direction of the sub-Court. Ammukutty V/s. Manavikraman AIR l920 Mad 709 was quoted in this connexion. The order of the High Court appointing the receiver is not traceable, and it is not possible to say quite definitely whether he was ordered in those proceedings to work under the direction of the sub-Court. But when the receiver took up the execution he had applied to the sub-Court and taken its leave. The evidence of D.W. 1 was that the sub-Court's order was obtained under the High Court's direction. In Ex. E, the petition filed by the plaintiffs, it is stated that the receiver was appointed to act under the direction of the sub-Court, so that it appears very likely that he was ordered by the High Court to work under the sub-Court.