GUDURI ANJAYYA Vs. DEVABHAKTUNI GUNDARAYUDU

JUDGEMENT

(1.) The petition which gave rise to the order under appeal was filed by the first respondent, who was a purchaser amongst others of the property in dispute in execution of a mortgage decree obtained by himself in O.S. No. 81 of 1931 on the file of the Court below. In 1922, some three years after the mortgage, the equity of redemption in an extent of 6.16 acres out of the mortgaged property was purchased by one Venkataramiah in Court-auction in execution of a money decree obtained against the mortgagors. The purchaser also obtained possession through Court on 3 December, 1922. In 1930, Venkataramaiah was adjudicated an insolvent and his estate vested in the Official Receiver. At the time When the mortgage suit, O.S. No. 81 of 1931, was instituted, which was on 22nd October, 1931, the insolvency was still pending and the plaintiff, therefore, impleaded the Official Receiver as a defendant. He also impleaded Venkataramaiah's son, but Venkataramaiah himself was not made a party. On 17 February, 1933, the adjudication was annulled and the insolvent's properties were revested in the insolvent by order of Court. The suit, however, proceeded without Venkataramaiah being added as a party, and a preliminary decree was passed on 25 Sep., 1933 followed by a final decree on 24 November, 1934. E.P. No. 9 of 1936 was then filed by the decree-holder for the execution of the decree by sale of the mortgaged property. On 25 September, 1936, while that execution petition was pending, he put in E.A. No. 339 of 1936 for the joinder of Venkataramaiah in the execution proceedings, but the application was, rightly in our opinion, dismissed on 7 April, 1937. This was obviously an attempt to cure the defect due to the omission to bring Venkataramaiah on the record in the suit. As it was unsuccessful, the decree holder made another attempt to get rid of the objection of Venkataramaiah that, not being a party to the suit, the decree did not bind him. E.A. No. 293 of 1938 was accordingly filed for the removal of the obstruction caused by Venkataramaiah to the receiver appointed in the suit, taking possession of 3.14 1/2 acres out of the property originally purchased by the latter. On this occasion also the decree-holder failed. By its order on this application, the Court directed the receiver to refrain from interfering with the possession of the obstructor. It will be seen that the obstruction related only to 3.14 1/2 acres, whereas Venkataramaiah had purchased 6.16 acres. The difference represents the share of Venkataramaiah's son decreed to him in a suit for partition instituted by him. The son's share was bound by the mortgage decree as he had been made a party to the suit, and on his death his mother had been substituted as his legal representative.

(2.) The mortgaged property was finally brought to sale, and the first respondent, the decree- holder, became the purchaser in court-auction. He then filed E.A. No. 440 of 1940 on. the strength of his purchase, asking for delivery of possession of the property purchased, inclusive of the portion, namely, 3.14, acres 1/2 in Venkataramaiah's possession. By this time Venkataramaiah had sold the property to the appellants under a sale deed dated 15 March, 1940, and the real object of the application was to remove the obstruction caused by the latter. The appellants, who were made respondents along with the judgment-debtors, opposed the application on the ground that neither the decree nor the sale held in pursuance of it bound the interests of Venkataramaiah, as he had not been brought upon the record after, and in spite of, the annulment of his adjudication long prior to decree and the re-vesting of the property in him. If Venkataramaiah was not bound, the appellants who had purchased the property from him could not be bound by the proceedings which had been taken behind his back. But the learned Subordinate Judge has held that Venkataramaiah was sufficiently represented by the Official Receiver even after the annulment of the adjudication, and accordingly he has by his order, directed the removal of the obstruction and the delivery of the property to the decree-holder who, as we have said, is the first respondent. It is against this order that the present appeal is filed.

(3.) The respondents advocate took a preliminary objection that the appeal is incompetent, as on their own showing the appellants were neither parties to the suit nor representatives of the parties within the meaning of Section 47 of the Civil procedure Code, and no right of appeal is recognised by any other provision of the Code. But an appeal does lie if the Court purports to make the order under a provision of law wrongly assumed by it to be applicable though it was really not applicable provided of course that an appeal is ordinarily permitted against orders rightly made under that provision. (See Abdul Rahiman Saheb V/s. Ganapathi Bhatta (1920) 10 M.L.J. 305 : L.R. 23 Mad. 517, Latchmanan Chetty V/s. Ramanathan Chetty (1905) 14 M.L.J. 436 : I.L.R. 28 Mad. 296 (P.C.), Muthiah Chettiar V/s. Govinddoss Krishnadoss . In the present case, the learned Subordinate Judge has in effect held that the appellants derive their right under a person who had been properly represented by the Official Receiver, who had been made a party to the suit, in other words, that they are the representatives of one of the parties. |Except in this view the order could not have been made against them, as they were strangers to the decree. Having invited the Court to pass the order on the footing that the appellants were the representatives of a party to the suit, or of one who was sufficiently represented by a party, the respondents cannot now be permitted to urge the contrary in bar of the maintainability of the appeal.