M R M MURUGAPPA CHETTIAR Vs. SMCHENGALVARAYA CHETTIAR

JUDGEMENT

(1.) The appellants before this Court are the legal representatives of the plaintiff in O.S. No. 115 of 1940 on the file of the District Munsif's Court of Trichinopoly, and the appeal arises out of a suit for recovery of money due in respect of the liability under the security bond executed by defendant 1 in the suit by respondent 2 herein. Defendants 2 to 5-respondents 3 to 6 herein are the sons of defendant 1. Defendant 6, respondent 1 in this appeal, was impleaded as the subsequent alienee of the hypotheca, being the purchaser of the house at the court auction held in O.S. No. 36 of 1928 on the file of the District Munsif's Court of Trichinopoly which was a suit filed by the Trichinopoly Municipality for recovery of arrears of municipal taxes due on the property. The plaintiff's contention was that the purchase in court. auction was as a result of fraud committed by defendant 6 in collusion with the other defendants. The main contest in appeal is as between the plaintiffs and defendant 6. In the sale held in O.S. No. 36 of 1928 defendant 6, respondent 1 in this appeal, purchased door No. 24. That suit was filed on 18 January 1928 for recovery of Rs. 60-80-0 due as tax in respect of houses Nos. 24,25,26 and 26-A which belonged to Subramanian Chetty and Rajagopala Chetti. House No. 24 belonged in common to the two brothers. On 13 February 1928 there was a partition between them. On 24 February 1928 Rajagopala Chetti and his son defendant 1 executed a security bond in favour of the plaintiff giving their half interest in house No. 24 as security. Rupees 625 was advanced. On 28 March 1928 a preliminary decree was passed in favour of the municipality and the decree directed house No. 24 to be sold last. On 16 April 1930 defendant 6 in this suit purchased houses Nos. 25, 26 and 26-A in the sale held in execution of a small cause decree against Subramanian Chetti. The final decree in O.S. No. 36 of 1928 was passed on 12 August 1931. On 18 January 1937 the municipality filed E.P. No. 251 of 1937 for executing the decree in O.S. No. 36 of 1928 and when that execution petition was pending defendant 6 filed a petition praying that house No. 24 may be sold first and that the other houses purchased by him, viz., Nos. 25, 26 and 26-A should not be sold. Notices were issued to Subramanian Chetti and Manickam Chetti defendant 1 herein. Subramanian Chetti was absent, but Manickam opposed the prayer. On 27 September 1937 defendants 1 and 6 entered into an agreement that door No. 24 should be sold first, and the Court, in pursuance of the agreement, directed that door No. 24 should be sold first, and that in spite of the specific directions in the decree itself that that item should be sold last. Defendant 6 became the purchaser of door No. 24 for Rs. 251 out of which only Rs. 122-2-0 was due to the decree- holder. Defendant 6 contended that inasmuch as the mortgage deed on which the suit was filed was executed during the pendency of O.S. No. 36 of 1928 and as he was a purchaser in a sale held in execution of the decree in that suit, the mortgage would not be binding on him, and it would be affected by the doctrine of lis pendens under Section 52, T. P. Act. The plaintiff's answer to that was that the execution proceeding in which the property was brought to sale and purchased by defendant 6 was a collusive proceeding and hence the security bond is enforceable as against the hypotheca.

(2.) The first Court found in favour of the plaintiff, overruled defendant 6's objections and granted a preliminary decree. The learned Subordinate Judge of Trichinopoly on appeal held that there was no fraud or collusion affecting the rights of defendant 6 and that consequently plaintiff cannot have preference as against defendant 6 and he set aside the decree so far as defendant 6 was concerned. Hence this second appeal.

(3.) It was urged for respondent 1 that the finding of the learned Subordinate Judge that there was no collusion or fraud was a finding on a question of fact, that it is not open to this Court to go behind it, and that consequently the second appeal should be dismissed. For the appellants, it is stated that two substantial questions of law are involved in this case, viz., that the Court sale itself was ultra vires as the execution Court had no jurisdiction to go behind the decree and direct the sale of door No. 24 contrary to the terms of the decree. It is further contended that this is a case in which fraud and collusion were sought to be inferred from certain facts and that it is only in respect of the truth of those facts the finding will be final that the inference to be drawn from such facts would be a question of law and therefore it would be open to the, appellants to show that on the facts found the inference that there was no fraud and collusion was incorrect and that it will be open to the appellants to raise that plea.