A MALLARI RAO Vs. SIVAGNANA VANDAYAR

JUDGEMENT

(1.) This is a civil miscellaneous appeal against the order of the learned District Judge of West Tanjore dismissing a petition filed by the appellant for directing the delivery of possession of certain properties after removal of obstruction. The appellant purchased these properties at a Court sale held on 10 September, 1935, in execution of a decree dated 27 February, 1926. That decree directed the payment of certain amounts by way of restitution and created a charge in that respect on the properties in question. The Official Receiver of West Tanjore representing the estate of the decree-holder brought these properties to sale. The appellant who purchased them is a stranger Court auction-purchaser. In the meantime the judgment- debtor sold these very properties on 12 March, 1928, to one Subramania Chettiar and from him the respondent purchased them on 23 April, 1931. When the appellant auction- purchaser went to take delivery of the properties, the respondent resisted. Thereupon the petition under appeal was filed under Order 21, Rule 97 of the Civil P. C.. The learned District Judge dismissed it holding that the obstruction was in good faith and not on behalf or at the instigation of the judgment-debtor, that the dispute did not come under Section 47 of the Civil P. C. and that it could be determined only in a suit.

(2.) On behalf of the respondent, a preliminary objection has been raised before us. It is said that under Rule 103 of Order 21, the decision of the lower Court is conclusive unless a suit is filed and that therefore no appeal lies against that order. The appellant has in reply to this objection raised two contentions: (1) The sale to the respondent's vendor having taken place after the decree was passed, the order of the lower Court is not conclusive, as Rule 103 will not apply in virtue of Rule 102; and (2) though the petition purports to be under Rule 97 of Order 21, the dispute is one coming under Section 47 and therefore a suit is barred.

(3.) In support of the latter contention, the, learned advocate for the appellant has cited two decisions of this Court, Veyindramuthu Pillai V/s. Maya Nadar (1919) 38 M.L.J. 32 : I.L.R. 43 Mad. 107 (F.B.) and Jainul-abdin Sahib V/s. Krishna Chettiar .