THANGACHAMI NAICKER Vs. ALVRSTVEERAPPA CHETTIAR

JUDGEMENT

(1.) The legal representatives of one Errammal, the senior widow of the zamindar of Thevaram, are the appellants and appeals are preferred against the orders of the Subordinate Judge of Dindigul dismissing I.A. No. 190 of 1931 filed by Errammal as zamindarini of Thevaram for a direction to the Receiver appointed under the compromise decree in O.S. No. 31 of 1925 to hand over to her the zamin villages specified in Schedule A of the compromise decree, to which she was not a party, and allowing I.A. No. 170 of 1932 filed by respondent 1, the decree-holder in O.S. No. 31 of 1925, against the Receiver for an order to deliver the properties to him in accordance with the compromise decree. A preliminary objection was taken to the competency of the appeals, and, so far as is material, the facts are that the zamin and some other properties were mortgaged by the zamindar to two Chettiars for amounts borrowed by him. The zamindar died in 1901 bequeathing the estate to his daughter Bangarammal who succeeded him and the mortgagees instituted O.S. No. 32 of 1903 for sale of the hypotheca against Bangarammal and the widows of the zamindar, including Errammal, the mother of Bangarammal. The suit was decreed in spite of contest, and sale of the hypotheca was eventually ordered. The sale was fixed for 17 March 1913 and to avert it, Bangarammal mortgaged the identical properties to the father of respondents 1 to 3 on 13th March 1913 for Rs. 2,15,000. Payments were made towards interest upto 1922 and O.S. No. 31 of 1925 was instituted by respondent 1 for recovery of Rs. 5,49,000, the balance due under the mortgage, by sale of the hypotheca. The suit was laid against Bangarammal and 24 others including respondents 2 and 3 who were impleaded as defendants 24 and 25 and Errammal was defendant 2. She and defendants 3 to 23 were impleaded as they were stated to be claiming some right in the hypotheca and defendants 3 to 7, 11 to 13 and 22 remained ex parte. The names of defendants 8 and 17 were struck off and the properties claimed by defendants 9, 10, 14 to 16, 18, 19, 21 and 23 were exonerated.

(2.) A compromise was entered into by respondent 1 with Bangarammal to receive Rs. 3,75,000 in full satisfaction if paid on or before 31 July 1931 subject to certain conditions and a decree was passed in terms of the compromise. A receiver was appointed as agreed to for Schedule A properties which form part of the hypotheca and the properties were put in his possession. He was directed to deposit the net income into Court every month for payment to respondent 1 towards the decree amount, and the decree provides that on payment of the amount agreed upon on or before 31 July 1931 the mortgage should stand discharged and the Receiver should deliver Schedule A properties to Bangarammal. The decree further provides that if for any reason the entire amount is not paid within that time, for the amount outstanding, the Receiver should deliver possession of Schedule A properties to respondent 1 without any execution proceedings as under an absolute sale and the charge of the rest of the hypotheca shall stand discharged. The decree is silent as regards the other defendants, except that it says that each party should bear his or her own costs; and Bangarammal died on 14th December 1930 without discharging the decree debt. I.A. No. 190 of 1931 was filed by Errammal as the succeeding zamindarini against respondents 1 to 3 on 29 July 1931 for a direction to the Receiver to hand over Schedule A properties to her on the ground that the decree to which she was not a party was not binding on her, and the petition was filed Under Secs.47, 151 and Order 40, Rule 1, Civil P.C. It was opposed by respondents 1 to 3 and I.A. No. 170 of 1932 was filed by respondent 1 subsequently against the Receiver for a direction to him to deliver the properties in accordance with the compromise decree. The petitions were tried together and by a common judgment the Subordinate Judge dismissed I.A. No. 190 of 1931 and ordered I.A. No. 170 of 1932.

(3.) Errammal was not a party to I.A. No. 170 of 1932, and it was rightly conceded that, apart from Section 47, Civil P.C., the order in I.A. No. 190 of 1931 would not be appealable. But Section 47 would not apply unless the question arises between the parties to the suit, in which the decree was passed, or their representatives and relates to the execution, satisfaction or discharge of the decree and as pointed out in Abdul Sao V/s. Sundara Mudaliar AIR 1930 Mad 817 a defendant who was not a necessary party would not be a party to the suit within the meaning of Section 47 if he is exonerated without his claim being adjudicated upon. Errammal was not a necessary party to the suit on the mortgage executed by Bangarammal nor was her claim adjudicated upon. The compromise was between Bangarammal and respondent 1 and she was in effect exonerated. It is under the circumstances doubtful whether she would be a party to the suit within the meaning of Section 47 and she does not claim as the representative of Bangarammal. Further the application is for delivery of the properties on the ground that the compromise decree is not binding on her and not under or in execution of that decree and as observed in Tallapragada Sundarappa V/s. Boorugappalli Sriramulu (1907) 30 Mad 402 at p. 405 that question is not one that can be tried in execution. Section 47 has therefore no application and it follows that the appeals are incompetent. The preliminary objection is therefore upheld and the appeals are dismissed with costs. The memorandum of objections also goes and is dismissed with costs.