TANKA GOPALAN Vs. TANKA RATTAMMA

JUDGEMENT

(1.) The appeal has been argued only on the question whether the 5th defendant s purchase was invalid, because it was made pendente lite, and whether the property in his hands could therefore still be made liable for the plaintiff s maintenance at the date of suit.

(2.) The law applicable, Section 316 of the Code of Civil Procedure then in force, provides generally that, so far as regards the parties to the suit, and persons claiming through or under them, the title to property sold, as this was, at court sale shall vest in the purchaser from the date of sale certificate. The Lower Appellate Court has however held that, though the date of the fifth defendant s certificate is subsequent to the date of the plaint, that fact is not decisive against parties to the suit and persons claiming through or under them and (2) the section does not deprive the purchaser of an equitable title, incomplete until, the sale is confirmed, but on confirmation dating back to the date of sale.

(3.) As regards (1) the dispute is not between the plaintiff who is claiming maintenance and a charge in order to its enforcement, and the 5th defendant, purchaser from the 2nd defendant in court sale. The plaintiff s claim to maintenance was at the date of the institution of the present proceedings unsecured; in fact it is only through them that she can, if successful, obtain the property sold to the 5th defendant as security. The decisions shown us and to be referred to apply Section 316, not to the case of a person, who had still to establish a claim against the property in dispute and who could do so only on the assumption that the section was applicable, but to cases, in which his interest has already been constituted independently.