SUPPAN ASARI Vs. ALIMA BIBI

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. The suit was to set aside an order dismissing a claim petition. The defendants were the decree-holders. They obtained a decree in O.S. No. 204 of 1925 on the file of the District Munsif's Court of Coimbatore and attached the properties of the judgment-debtor Pachianna Pannadi. The plaintiff then preferred his claim under a sale deed Ex. A dated 13 May 1925 from Pachianna Pannadi. This sale was after the decree but about two months before the date of the attachment. The Court of first instance decreed the plaintiff's suit but its decree was reversed in the lower appellate Court which however gave the plaintiff a charge with regard to a certain mortgage Ex. C, which it held that he had discharged. Against this decree the present second appeal is filed.

(2.) The trial Court found that the land purchased comprised the whole property of the judgment-debtor. The purchase price was Rs. 3,500. It is not contended that this was an under estimate and in fact the decree-holders refused to take the land from plaintiff for Rs. 4,000 and transfer the decree to plaintiff. The consideration under Ex. A was stated to be made up as follows : Rs. 2,000 to discharge a mortgage to one Subbiah Pillai (Ex. C); Rs. 1,168 to discharge a mortgage in favour of one Veera Pannadi; Rs. 100 received in cash; and the discharge of a promissory note for Rs. 200 executed by the vendor in favour of the appellant. The trial Court found that all the consideration as per terms of the sale deed was paid, that the plaintiff got delivery of the documents on the date of the sale deed and also got possession of the property, and that the decree-holder was not entitled to proceed against the land. The Subordinate Judge found that as far as the first mortgage Ex. C in favour of Subbiah Pillai was concerned, it had been discharged by the plaintiff and that the consideration was good, As regards the second mortgage Ex. C.1 he found that the debt was not genuine. The mortgagee under Ex. C-1 was the father-in-law of the judgment-debtor. With regard to the payment of Rs. 100 in cash and the promissory note debt of Rs. 20O alleged to be due to the plaintiff, he found that this was a fictitious consideration. He therefore dismissed the plaintiff's suit except that he gave him a charge to the extent of Rs. 2,000 in respect of the mortgage, Ex. C. These being the findings of fact, it is clear that the plaintiff was not a creditor of the judgment-debtor, the vendor, at the time of the sale. I shall first deal with the objection which was raised in both the lower Courts and is also raised here and which, if correct, would suffice for dismissing the appeal. The objection is that the plaintiff's suit is not maintainable because the judgment-debtor vendor was not joined as a party. For this reliance is placed on a remark in Ghasi Ram V/s. Mangal Chand (1905) 23 All. 41, where it was said If an unsuccessful claimant brings a suit and he seeks to establish his claim against both the decree-holder and the judgment-debtor, the latter is of course a necessary party.

(3.) The trial Court found that this remark does not apply to the present case because the plaintiff did not claim any relief against the judgment-debtor. Assuming for purposes of argument that he can be held to have claimed relief against the judgment-debtor, it is to be observed that the remark in Ghasi Ram Vs. Mangal Chand (1905) 23 All. 41 is obiter. Besides it was a case decided under the old Code. Section 31 of the old Code which corresponds to Order 1, Rule 9 did not contain the words "or non-joinder" which were introduced for the first time in the Code of 1908. Moreover, in a later decision of the same Court, Maryam Bibi V/s. Ram Das 1922 All. 401, the learned Judge dissents from the view that the judgment-debtor is a necessary party in such a suit. In that case the matter was directly in point and the learned Judge, after observing that the dictum, was obiter and was passed under the old Code says: It is sufficient for the purposes of today to hold that Order 1, Rule 9 covers the case and distinguishes it from the dictum relied upon by the Courts below.