CHIVIKULA LAKSHMINARAYANA Vs. SINGU HANUMAYYA

JUDGEMENT

(1.) There is no dispute about the facts. The only question decided by the learned Subordinate Judge and the only question arising for decision in this appeal is one of limitation. It is clear that if the question arising between the plaintiffs and the contesting respondents falls under Section 47, Civil P.C., the decision of the learned Subordinate Judge is correct. As to this I do not think there is any room for doubt. The contesting defendant are persons who purchased the mortgaged property pendente lite. There are many decisions the result of which is that purchasers of the mortgaged property pendente lite are representatives of the judgment- debtor and there is no dispute with regard to this point. Mr. Raghava Rao's contention is that the question which arises now between the plaintiffs and the contesting defendants does not come within Section 47 because it did not arise in execution of the decree. Section 47 however provides that all questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree must be determined by the Court executing the decree and not by a separate suit. The only question which arises is with regard to the delivery of the mortgaged property. The plaintiffs applied in execution for delivery against defendants 1 to 7, the heirs of the original mortgagor. But it was well known to the plaintiffs in 1922 when the execution petition was filed, that defendants 1 to 7 were not in possession.

(2.) As early as 1917 the plaintiffs had filed an application I.A. No. 1263 of 1917 to implead the purchasers pendente lite in the suit on the ground that they had bought the property and were in possession of it. That application was rejected by the trial Court. Now since the question is with regard to the delivery of possession of the mortgaged property, it seems to me impossible to hold that it is not a question relating to the execution of the decree. Mr. Raghava Rao contends that his clients did all that was obligatory upon them when they took out execution proceedings against defendants 1 to 7. He points out that they had unsuccessfully attempted to get the purchasers impleaded as parties in the suit, that they got a decree only against defendants 1 to 7 and that they executed this decree against defendants 1 to 7 in so far as it could be executed. Having done that he says they were under no obligation to implead the purchasers. He does not dispute the cases cited on behalf of the respondents of which Ishan Chunder Sirkar V/s. Beni Madhub Sirkar (1897) 24 Cal 62 is typical, in which it has been held that a purchaser pendente lite is competent to intervene in execution proceedings and to have his questions decided by the executing Court. In the present case he points out that the pur. chasers did not intervene in the execution proceedings. This, however, leaves out of account the fact that the decree-holders knew the purchasers to be in possession but gave them no notice of the execution proceedings. It is not easy to see how the purchasers could intervene in execution proceedings in the absence of notice to them. Mr. Raghava Rao relies mainly upon the case reported in Basappa Budappa V/s. Bhiman Gowda Shiddangowda AIR 1928 Bom 66 in which it was held that a purchaser pendente lite is not a representative of the judgment-debtor for all purposes. With due respect I am not prepared to follow the decision of the Bombay High Court in that case. It appears from the judgment in Basappa Budappa V/s. Bhiman Gowda Shiddangowda, AIR 1928 Bom 66 at p. 212 that no authority was cited before the learned Judges for the proposition that transferees pendente lite are representatives within the meaning of Section 47 except Madho Das V/s. Ramji Fatak (1894) 16 All 286 and Sheo Narain V/s. Chunni Lal (1900) 22 All 243. It is needless to point out that there are many more cases which might have been cited. The case which comes nearest to the present case, so far as I am able to see, is the case in Ram Charan V/s. Parmeshwar . Like the present case, that was one in which during the pendency of the suit for foreclosure the mortgagor sold to a stranger the equity of redemption. After the sale, the plaintiff applied for a final decree and impleaded the purchaser but later on discharged him. As in the present case, in execution of his final decree the plaintiff got delivery of possession as against the mortgagor. But he failed in the mutation proceedings to get his own name entered in the place of that transferee. Thereupon he applied to execute the decree again for delivery of possession as against the transferee. It was held by the Court that he was entitled to apply for execution against the transferee who was actually in possession. At p. 239 the learned Judges dealt with an argument similar to the one put forward by Mr. Raghava Rao in the present case. Mr. Raghava Rao has contended that having taken out execution proceedings against the only defendants who were on the record, he has done all that was necessary for him to do. The learned Judges of the Allahabad High Court observe as follows: It is next argued that the appellant having taken out execution of his decree against Nurul Hasan and having obtained delivery of possession against him, the decree should be deemed to have been completely executed, and no further execution proceedings can take place.

(3.) They go on to say: We do not think this argument is sound. There can be no doubt that the decree- holder could have in the first instance, applied for execution not only against Nurul Hasan but also against his transferee pendente lite. Had he done so, there could be no argument against the maintainability of such application so far as Parmeshwari Din was concerned. The position cannot be materially different if an application was made in the first instance only against Nurul Hasan; and when the decree-holder subsequently discovered that the execution taken out against Nurul Hasan was infructuous, he applied for execution of his decree under Order 21, Rule 11, Civil P.C., against the respondent, who should as much be considered to be. the judgment-debtor as Nurul Hasan himself. We are clearly of opinion that the execution taken out against Nurul Hasan was not a complete execution of the decree.