SUPPAYYAN PILLAI Vs. LAKSHMANNA PATTAR

JUDGEMENT

(1.) The facts which give rise to this appeal are simple. The shop in dispute belonged to a Pandaram family. It was mortgaged to one Saradambal in 1905 under Ex. 1. It was then attached by a simple money decree-holder in execution of the decree he got against the Pandarams. A decree was obtained by a third person against the Pandarams and that decree was assigned to defendant 1 in the present suit. He purchased the property in execution of the decree in 1907 and got possession. In 1910 a suit for partition was filed by one of the members of the Pandaram family, O.S. 45 of 1910, in the Subordinate Judge's Court against the other members of the family, and the present; defendant 1 was defendant 10 in that suit. One of the items of property of which the partition was sought was this shop. The plaintiff's case was that the purchase by the present defendant 1, (defendant 10 in that suit) was benami for the family. In the meantime the present defendant 1 discharged the mortgage debt due to Saradambal. In the partition suit it was held that the plaintiff was entitled to a share but as defendant 10 (the present defendant 1) had discharged the mortgage, he was entitled to Rs. 1,852-8-2 due to him. There was a preliminary decree and a final decree in which it was directed that the property should be divided into three shares subject to the payment of Rs. 1,852-8-2. and interest thereon. Then the plaintiff prayed for delivery of possession. This charge was set up as a ground for resisting the delivery. The Judge held that on account of this charge possession could not be given except on payment of Rs. 1852 and interest. This suit is filed to get possession.

(2.) Defendant 5 in this suit, a brother of defendant 1 was not a party to the previous suit, and he raised some objections. A decree has been passed directing delivery of possession on payment of Rs. 1,620 and subsequent interest. It seems to us that on the facts proved in this case and the fact that defendant 5 was a brother of defendant 1 there can be no question of adverse possession.

(3.) The next point is that the present suit is barred under Section 47 as the matter was one relating to the execution of the partition decree. We find it difficult to see how in the absence of any decree in that suit for payment a mere declaration that the property is subject to a charge and that possession could not be given until that amount is paid would entitle parties to work out their mortgage rights in execution of that decree. In some partition suits, where the property is subject to a charge or mortgage, the parties are not in a position to pay before the final decree is passed. A mere declaration that the property is subject to a charge by itself would not give the right to work out in execution the mortgage rights. We do not think that the present suit is barred by Section 47. We might also state that this objection was not taken when the suit was tried. If it had been taken at that time it would have been open under Sub- section 2 to the Court to treat the suit as a proceeding in execution and work out the rights of the parties if by that time the claim was not barred, so that there was no technical objection to that course having been followed if objection was taken in time. However, it is unnecessary to pursue that matter further, for, even if we thought that Section 47 applied, we would be inclined to send this case back and not dismiss the suit.