KRISHNAPPA MUDALY Vs. PERIASWAMY MUDALY

JUDGEMENT

(1.) The appellant who claimed title as purchaser of certain items of property sued to redeem a mortgage executed by the sixth defendant in favour of the first defendant. The fourth defendant who is the present respondent was made a party to the suit on the ground that he was claiming an interest in the property. As he claimed an interest adverse to the mortgagor and mortgagee, he was exonerated from the suit. The order recites that the fourth defendant was an unnecessary party to the suit and that he was exonerated with costs "leaving open the issues affecting him." A decree for redemption was passed in favour of the plaintiff- appellant, and he paid the amount decreed and prayed that possession of the mortgaged property be delivered to him. The amin in execution delivered a portion of the property in the possession of the respondent. The respondent who had been exonerated from the suit and whose claims to the properties was not adjudicated upon filed a petition under Order XXI, Rule 100 of the Code of Civil Procedure, objecting to possession being given on the ground that the property belonged to him and was in his possession and enjoyment and that the decree in the suit was collusively obtained by the plaintiff against the sixth defendant who had no title. The decree-holder opposed the application and contended inter alia that as the fourth defendant was a party to the suit his remedy was under Section 47 of the Code and not under Order XXI, Rule 100. The District Munsif was of opinion that Section 47 did not apply and that he came under Order XXI, Rule 100. He ordered the fourth defendant to be restored to possession. On appeal the District Judge was of opinion that Section 47 applied but dismissed the appeal on the ground that the provisions of Section 47 and Order XXI, Rule 100 were not mutually exclusive.

(2.) The chief grounds urged in appeal are that the fourth defendant continued to be a party to the suit notwithstanding the fact that he was exonerated, that the lower Appellate Court, should have gone into the question of the title of the fourth defendant and should have dismissed his petition if he was unable to show a title superior to that of the plaintiff instead of having confined itself to the main question of possession and dispossession.

(3.) We are of opinion that the case falls under Order XXI, Rule 100 of the Code of Civil Procedure, and that the lower Courts were right in refusing to decide in execution proceedings questions which had advisedly not been adjudicated upon in the suit.