GUNA DURGA PRASAD RAO Vs. DVKRISHNA RAO

JUDGEMENT

(1.) This appeal arises out of an order of the learned District Judge of Ganjam dismissing an application made under Order 21, Rule 97, Civil P.C. No appeal lies against such an order. It is, however, contended by the appellants that the learned District Judge, by reason of the provisions contained in Order 21, Rule 102, had no jurisdiction to make the order, and ought to have dealt with the matter under Section 47 of the Code. The property in respect of which the application was made was purchased by the respondent at a sale in execution of a decree for money which he had obtained against one Goona Seethayamma.

(2.) The sale took place on 14 March 1938, and, subsequently, on 29th November 1938, the respondent was put in possession of the property. Now, some considerable time previously, in 1981, Goona Seethayamma and her four sons had been impleaded as defendants in a partition suit instituted by her step-sons who are the present appellants. This suit was dismissed by the trial Court in 1935, but on appeal it was decreed by the High Court of Madras in 1939. The property with which we are now concerned was included in the schedules to the plaint in the partition suit as part of the property of the joint family of the plaintiffs and the defendants and finally it was allotted to the plaintiffs. When, however, the plaintiffs attempted to take possession of it in execution of their decree, they were resisted by the respondent, and, therefore, made an application under Order 21, Rule 97. It is clear that the respondent was a person other than the judgment- debtor who Maimed in good faith to be in possession of the property on his own account, and the learned District Judge was, therefore; bound under Order 21, Rule 99, to make an order dismissing the application, unless the case was one to which Order 21, Rule 102 applied.

(3.) In repelling the contention that Order 21, Order 102 applied, the learned District Judge relied on an observation of Pazl Ali J., as he then was, in Harihar Prasad V/s. Lakhan Lal A.I.R. 1935 Pat. 230, that "Order 21, Rule 102, does not in terms apply to an involuntary sale." I respectfully concur in this observation. It seems to me quite impossible to say that the respondent is "a person to whom the judgment-debtor-has transferred the property after the institution of the suit in which the decree was passed." The .property has not been transferred to the respondent by Goona Seethayamma; it has been transferred by the Court which executed the decree against the will of Goona Seethayamma, and, for all we know, in spite of her utmost endeavours to prevent it. Moreover, the interest which the respondent acquired in the property as a result of the sale in execution of his decree was not precisely the interest which he would have acquired if Goona Seethayamma had sold the property to him by private treaty. For the appellants, much reliance was placed in this Court, as also in the Court below on a decision of a Judge of the Calcutta High Court, sitting singly, in Bepin Chandra V/s. Hem Chandra . That" learned Judge there observed: Admittedly, the general doctrine, of lis pendens under Section 52, T.P. Act, has been extended by judicial decision to involuntary alienations and I see no reason why the same principle should not apply in the case of transfers which are covered by Rule 102.