ABDUL AZIM SAHIB Vs. CHOKKAN CHETTIAR

JUDGEMENT

(1.) The facts out of which this reference to a Full Bench arises may be shortly stated. The respondent in the High Court obtained a decree in O.S. No. 128 of 1921 and in execution of the decree brought certain properties of the judgment-debtors to sale and purchased the properties. The sale was confirmed in his favour on the 14 March, 1924, after the dismissal of an application by the judgment-debtors to set aside the sale.

(2.) There was an appeal and also a revision to the High Court. The revision petition was dismissed on the 12 October 1927. It is conceded by all the parties that 12thOctober, 1927, may be taken to be the date when the sale became absolute. Within three years of the High Court's order, that is, 1 September 1930, the decree-holder by M.P. No. 561 of 1930 applied for delivery of possession of the properties purchased. The properties purchased comprised a house and certain lands. The house was item 2 of the application. When the amin proceeded to deliver possession of the house, one Abdul Gaffar Sahib claiming that his wife Amina Bi has a share in the house bolted the outer door from inside and locked the same and prevented the amin and the auction-purchaser from going inside. Afraid of a disturbance the amin returned and sent his report on the 11 September 1930. Nothing is stated by the amin as to the delivery of possession of the lands. When the matter came up before the District Munsif, he passed the following order : "possession was not given on account of obstruction. Petition dismissed". This is, dated the 26 September 1930, that is, four days before the end of the quarter.

(3.) It is our duty to point out that this order is a very improper order. In the first place nothing was done by the amin as to the other item, namely, the lands. Even as to the house, the obstruction was by a person claiming a share in it. It is true that the house is probably not divided by metes and bounds and it is difficult to deliver physical possession of the remaining share as to which there was no obstruction. But in such a case the Court ought to deliver such possession as intangible interest may be capable of. Instead of doing this the District Munsif simply says that the petition is dismissed. One thing is noticeable that throughout, that is, at the time of the attempted delivery and at the time of the order there was no obstruction or opposition on the part of the judgment-debtors. When there was no opposition by the judgment-debtors and the obstruction was only by a third person to a limited extent, there is no reason why the portion as to which there was no obstruction by the third person and no opposition by the judgment-debtors should not be delivered. And it is also clear that the District Munsif never meant to refuse such a relief. The order is passed in a mechanical way without adverting to the details of the matter before him, the desire obviously being to close the petition and show that it was not pending at the end of the quarter. It has again and again been held that such a disposal is not a judicial disposal on the merits. It cannot be regarded that any relief claimed by the petitioner was refused to him so as to compel him to appeal to an appellate Court.