K M M PALANIAPPA CHETTIAR Vs. RAMASWAMI SERVAI

JUDGEMENT

(1.) This is an application to revise an order refusing delivery of possession under Order 21, Rule 95, Civil Procedure Code. The petitioner filed O.S. No. 31 of 1929 on the file of the Subordinate Judge's Court of Devakottai on a mortgage executed by one Muthuswami Servai, father of respondents 1 and 2 herein. The property mortgaged was admittedly joint family property wherein the said Muthuswami Servai and his sons were interested. In execution of the said decree three items of mortgaged property mentioned in the decree therein were brought to sale and purchased by the petitioner himself on the 29 June, 1931. After the purchase, the petitioner filed an application E.A. No. 118 of 1932 for delivery of possession of the said items and obtained delivery of items 2 and 3 but not of item 1. This was in consequence of an obstruction by respondents 1 and 2. The petitioner then filed an application on the 4 March, 1932, E. A. No. 203 of 1932 on the file of the Court of the Subordinate Judge of Devakottah for removalof the obstruction. It may be stated that before the petitioner purchased the said properties, the second respondent, Krishna Servai had filed a suit for partition O.S. No. 153 of 1929 on the file of the District Munsiff's Court of Devakottah against his father Muthuswamy Servai and his brother including the first respondent in this case. In the said suit Krishna Servai impeached the said mortgage on the ground that it was not binding on the family and therefore on respondents 1 and 2 herein. The first respondent supported Krishna Servai in the said litigation. To the said suit the petitioner was made a party. When E.A. No. 203 of 1932 was taken up for hearing the said suit was pending. In answer to the said application both the respondents 1 and 2 filed a counter-affidavit stating their objections to the request made by the petitioner for delivery of possession of the property. In paragraphs 5 and 6 of the counter-affidavit they set out in detail the nature of their objections. They stated that the properties which were the subject-matter of the mortgage suit O.S. No. 31 of 1929 were the subject-matter of a suit between the parties in O.S. No. 153 of 1929, that the said suit was pending trial, that as the petitioner purchased the properties pending the said litigation, his purchase would be affected by the doctrine of lis pendens and he would not be entitled to any relief inconsistent with the claim of the respondents. They further alleged thus in paragraph 6 of the said affidavit: In view of the considerations set forth in paragraph 5 supra, this Court trying the same question and giving a decision thereon may result in a conflict of decisions by two Courts which ought not to be allowed.

(2.) They also alleged that in view of the said litigation the question of title should not be gone into. The learned Subordinate Judge who dealt with the said application did not go into the question whether in view of the fact that the mortgage was by the father the head of the family, it was open to the defendants to resist the purchaser's claim for delivery of possession, but as the suit O.S. No. 153 of 1929 was pending he dismissed the application holding that the petitioner failed to prove that the resistance was caused by the respondents at the instance of the judgment-debtor. This order was passed on the 9 July, 1932. The said O.S. No. 153 of 1929 was disposed of by the learned District Munsiff of Devakottah on the 19 August, 1932, and so far as the mortgage in favour of the petitioner was concerned the learned Judge dismissed the suit. He held that Krishna Servai and Ramaswami Servai the respondents 2 and 1 herein, were bound by the mortgage and the auction sale and it was no longer open to them to recover any portion of the said property. There was an appeal against the said decision and it was confirmed by the learned Subordinate Judge of Devakottah on the 30 January, 1933. It will thus be seen that within a year from 9 July, 1932, the date on which E.A. No. 203 of 1932 was dismissed there has been a final adjudication by a competent Court declaring and establishing the right of the petitioner to the suit property and as the learned Subordinate Judge observes in the order which is now sought to be revised: By virtue of the judgment on appeal it is common ground that the respondents could not claim to be owners of item 1 and the title must be taken to have passed to the present petitioner auction purchaser.

(3.) After the decision of the appellate Court, on the 22nd August, 1933, the petitioner filed the application out of which this revision petition arises, E.A. No. 977 of 1933 under Order 21, Rule 95 for delivery of possession of item 1. Objection wastaken that as the petitioner did not file a suit within one year as required by Order 21, Rule 103, Civil Procedure Code, the order on the said petition became conclusive and the petitioner is not therefore entitled to obtain any relief. This objection prevailed in the Court below. The question is whether the view taken by the lower Court is sound. Order 21, Rule 103, Civil Procedure Code, provides that: Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but, subject to the result of such suit (if any) the order shall be conclusive.