MUTHU PILLAI Vs. ALAGIRISAMI PILLAI

JUDGEMENT

(1.) The plaintiff in this suit obtained a mortgage decree and in execution, certain property was sold. Under the decree, the share of the 1 defendant alone was made liable; but by some mistake or other, the sale proclamation proclaimed the whole property for sale and the sale certificate certified that the whole property has been sold. In accordance with the sale certificate, the plaintiff applied for delivery of possession. As there was some obstruction, his petition was dismissed. A subsequent petition to remove the obstruction was also dismissed as being out of time. Plaintiff now brings this suit not to recover the whole property but to recover the half-share of his mortgagor after effecting a partition.

(2.) The lower Courts have dismissed the suit on the ground that it is in effect a suit to obtain the same relief as that asked for by him in execution and as the relief was refused and he has not brought the suit within one year of the date of refusal, the suit is barred under Art. 11(a) of the Limitation Act. Both the Courts rely on the decision of the Privy Council, in Baldeo V/s. Kanhaiyalal [1920] 16 N.L.R. 103, holding that the present suit is in effect for the same relief as that asked for in the execution petition. Although there was a mistake in the sale proclamation and the sale certificate, the sale had the legal effect of passing only the 1 defendant's share in the property and plaintiff was not entitled to obtain delivery of the whole property. When, therefore, his application for such delivery was refused, he knew that his application had been rightly refused and there was no necessity for him to get that order set aside provided that he could obtain the remedy to which he was legally entitled, namely, recovery of a half-share in the property. In this view, it seems rather absurd to require the plaintiff to get an order set aside, which he recognized to be a valid order and against which he can adduce no valid objection in order that ho may obtain rights to which he is otherwise entitled, and I think that on this ground the decision in Baldeo v. Kanhaiyalal [1920] 16 N.L.R. 103 is not applicable. In that case the plaintiff in effect asked for the same relief in his suit as he had asked for in his application for execution. I do not, therefore, think that the lower Courts were right in holding that the plaintiff is bound to set aside the order within one year and, not having done so, his suit to obtain his relief is barred by limitation.

(3.) A further objection is taken for the respondent that this suit relates to purely a question of execution and no suit will lie. So far as I am concerned, I am bound by the authority of the case reported in Yelumalai Chetti V/s. Srinivasa Chetti [1906] 29 Mad. 294, in which it was held that a Court cannot, on a mere application for execution by a Court auction-purchaser, enforce his right by an order for partition. It is argued that this case has been wrongly decided and reliance is placed on two cases, one reported in Bhimappa V/s. Irappa [1902] 26 Bom. 146 and the other in Ganapat Rai V/s. Husaini Begam [1921] 19 A.L.J. 53.