CHOWDHARI ABDUL SUBHAN SAHIB Vs. KANTE RAMANNA

JUDGEMENT

(1.) The question in this appeal is whether an uncertified adjustment of a decree can be pleaded by way of defence to a suit for possession instituted by the purchaser of property sold in execution of the decree against the judgment-debtor or his representative. The appeal has been heard by a Full Bench as there is considerable conflict of authority.

(2.) On the 16 March, 1911, one Lakshmi Narasamma, the widow of a deceased member of an undivided family, obtained a decree for maintenance against the two brothers of her husband and was given a charge on the property now in suit and other properties belonging to the joint family. Sometime before 1924--the record does not disclose the exact date--the decree was satisfied by a lump sum payment, but the adjustment was not certified under Order 21, Rule 2 of the Civil P. C.. In 1927, in insolvency proceedings No. 20 of 1927 on the file of the Subordinate Judge of Rajahmundry one of the brothers, Jogayya Sastri, was adjudicated an insolvent. In 1932 the Official Receiver sold the insolvent's share in the property in suit to one Subbarayudu, whose sons conveyed it on the 19 July, 1933, to the defendant. On the 4 November, 1935, the defendant purchased the interest of the other brother, Kameswara Rao. The property had been let to a tenant named Y. Virraju and in 1933, the defendant filed a small cause suit (No. 1071 of 1933) in the Court of the District Munsiff, Cocanada,for the rent due in respect of a half share of the property and obtained a decree. After the defendant had purchased the interest of Kameswara Rao and thereby had become entitled to the whole property subject to the charge in favour of Lakshmi Narasamma, he gave notice to Virraju to vacate. Virraju denied the defendant's title and consequently the defendant filed O.S. No. 89 of 1936 in the Court of the District Munsiff of Cocanada for the ejectment of Virraju. On the 15 March, 1937, he was granted a decree and as a result obtained possession.

(3.) In the meantime, Virnaju had induced the decree-holder in the maintenance suit to proceed in execution for arrears of maintenance for three years. This petition was filed on the 15 March, 1936, for the recovery of the sum of Rs. 258. The judgment-debtors did not enter any appearance and on the 8 December, 1936, the property was sold by the Court to the plaintiff for Rs. 375. Notice of these proceedings was not served upon the defendant and he was entirely ignorant of what was happening. On the 23 March, 1937, the plaintiff was given symbolical possession of the property. Virraju was still in physical possession. On the 14th July, 1937, the plaintiff filed the present suit in the Court of the District Munsiff of Ramachandrapur for an injunction restraining the defendant from interfering with his possession. On the 4 July, 1938, the suit was converted into one for possession of the property. The District Munsiff found that the maintenance decree had been satisfied long ago, that the sale in execution which took place on the 8 December, 1936, had been obtained as the result of fraud on the part of the decree-holder and Virraju, that the plaintiff was not a bona fide purchaser, but merely a benamidar for Virraju and that the defendant was a bona fide purchaser for value without notice of the charge on the property or of the execution proceedings. On these findings the District Munsiff dismissed the suit. On appeal, the Subordinate Judge concurred in all the findings of fact arrived at by the District Munsiff and cornfirmed the decree passed by him. The plaintiff then appealed to this Court. The appeal was heard by Happell, J., who, relying on the judgment of the Full Bench of the Calcutta High Court which decided Lakshmanchandra Naskar V/s. Ramdas Mandal1, allowed it and consequently ordered the defendant to deliver possession of the property to the plaintiff. The present appeal is by the defendant under Clause 15 of the Letters Patent.