PERIYAYA AMBALAM Vs. ARULAPPAN

JUDGEMENT

(1.) A preliminary objection has been taken that an appeal lies under Section 47, Civil P.C., and, therefore, this revision petition does not lie. Mr. Ramaswami Ayyar who appears for the respondents relies, in support of the preliminary objection, on the Full Bench decision in Veyindramuthu Pillai. V/s. Mayanadan [1919] 43 Mad. 107. The principles laid down by the Full Bench were afterwards applied by the referring Bench to which the case came back, Veindramuthu Pillai V/s. Mayanadan [1920] 43 Mad. 696. These two cases were also applied by Krishnan, J., in Jainulabdin Sahib V/s. Krishna Chettiar A.I.R. 1921 Mad. 420.

(2.) In the Full Bench case certain abstract questions were referred to the Full Bench. While answering those questions the Officiating Chief Justice observed that, if there is any question relating to the execution, discharge, or satisfaction of the decree, the auction-purchaser is bound to have it settled under Section 47, even though he cannot be regarded as a legal representative of the decree-holder or judgment-debtor. It is true that in the decision in Prosanna Kumar Sanyal V/s. Kali Das Sanyal [1892] 19 Cal. 683 the Privy Council laid down that if there is a question relating to the execution, discharge or satisfaction of the decree arising between the decree-holder and the judgment-debtor, the mere fact that the auction-purchaser is also very much interested in the same question does not make it the less a question to be decided under Section 47, and it is this decision that the Officiating Chief Justice purported to follow. The same decision was referred to and the same view was expressed by Oldfield, J., at p. 125, and Seshagiri Ayyar, J., at p. 132. If I can respectfully say so, I agree with the view so expressed by the Full Bench, namely, if there is a question relating to the execution, discharge or satisfaction of a decree arising between the decree-holder and the judgment-debtor, the mere fact that the auction-purchaser is also interested does not make Section 47 the less applicable. The difficulty arises in the application of this principle. When the case came back before the Bench, Oldfield and Seshagiri Ayyar, JJ., held that the matter before them fell under Section 47. In the case first there was a money decree and" in execution of the decree properties were attached. Before the properties were sold a suit was instituted on a mortgage of the same properties. While it was pending, the sale in execution of the money decree was effected. Afterwards the mortgage-decree for sale was also executed. The question arose as to which purchaser was entitled to the possession of the properties. The purchaser, in execution of the mortgage-decree, attempted to obtain possession and was resisted by the other purchaser; that is, the question arose in the course of the execution proceedings of the mortgage-decree, the question being whether Section 47 applied to the case. It is clear that the purchaser, in execution of the money decree, was a representative of the judgment-debtor for the execution proceedings of the mortgage-decree. So far the case presents no difficulty, but what is the position of the purchaser in execution of the mortgage decree? He was not a representative either of the decree-holder or of the judgment-debtor. But, without saying that he is a representative of any party, the principle enunciated in Prosanna Kumar Sanyal v. Kalidas Sanyal [1892] 19 Cal. 683 and repeated by the Full Bench was then applied, and, therefore, it was held that Sec. 47 was applicable. If the sale in execution of the money decree was not valid on the ground of lis pendens or for any other reason, then the sale in execution of the mortgage decree was perfectly valid and ought to prevail. If, for any reason, the sale in execution of the money decree prevailed, the sale in execution of the mortgage decree falls to the ground and the purchaser would be entitled to a refund of the purchase- money and the decree-holder would have to take out a fresh execution. Thus the decree- holder was interested in the question raised in the case. No doubt the auction purchaser was also interested; but this does not matter as laid down in Prosanna Kumar Sanyal V/s. Kalidas Sanyal [1892] 19 Cal. 683. The final decision was that the purchase in execution of the money decree was bad for lis pendens. One cannot anticipate the final conclusion on the merits for the purpose of deciding the question relating to Section 47. The question can only be considered on the footing that the decision on the merits might end either way. If it ends one way the decree-holder is very seriously affected by it. In my opinion, therefore, the decision in Veyindramuthu Pillai V/s. Maijanadan [1920] 43 Mad. 696 is perfectly right and correctly follows the principles laid down by the Full Bench. Against either of these decisions I have nothing to say.

(3.) I next come to the decision in Jainulabdin Saheb V/s. Krishna Chettiar A.I.R. 1921 Mad. 420. This is a decision of Ayling and Krishnan, JJ. Krishnan, J., delivered the main judgment. He purported to follow the reasoning in Veyindramuthu Pillai V/s. Mayanadan [1919] 43 Mad. 107, and Veyindramuthu Pillai V/s. Mayanadan [1920] 43 Mad. 696. In this case also there was a mortgage-decree and sale. But it was said that some properties were wrongly delivered in pursuance of the sale and the application was for the recovery of the properties over- delivered. I find it difficult to see what over-delivery of property, assuming that the sale itself was correctly carried out, has anything to do with the execution, discharge or satisfaction of the decree. The decree is properly executed by the sale being carried out as directed by the decree. If in delivery something more or less was delivered I cannot see how the decree- holder has any interest or could be affected by the rectification of the erroneous delivery, and the resemblance between that case and the case in Veyindramuthu Pillai V/s. Mayanadan [1920] 43 Mad. 696 ceases and the principle of Prosanna Kumar Sanyal V/s. Kalidas Sanyal [1892] 19 Cal. 683 does not apply. I am inclined, therefore, to dissent from Krishnan J.'s judgment. But sitting as a single Judge, it is scarcely proper for me to differ from the decision of a Bench and, if necessary, I ought to refer to a Bench. As to this, I observe: firstly, that the decision can scarcely be described as the decision of a Bench. The other Judge, Ayling, J., though formally he had not recorded a dissent, expresses his doubt about the correctness of Krishnan, J s. view. He said: "I am not prepared to dissent from my learned brother's view." It seems to me that there is really nothing to object to in the principles laid down in Veyindramuthu Pillai V/s. Mayanadan [1919] 43 Mad. 107. But I think that decision was not applicable to the facts in Jainulabdin Saheb V/s. Krishna Chettiar A.I.R. 1921 Mad. 420. Secondly, I may observe that that was a case of a mortgage-decree.