RAMASWAMI CHETTIAR Vs. MEYYAPPAN SERVAI

JUDGEMENT

(1.) In execution of a decree, a sale was held on 24 June 1922, which was confirmed on 25 July 1922. An application to set aside the sale was made and an order passed setting aside the sale on 17 December 1923. There was an appeal to the District Judge, a second appeal to the High Court, and a Letters Patent Appeal from the judgment in second appeal. All these appeals to which the decree-holder and the auction-purchaser were parties were dismisssed; the first appeal on 12 November 1924, the second appeal on 21 February 1928, and the Letters Patent Appeal on 13 September 1929. The present application was put in Under Order 21, Rule 93 by the auction purchaser for refund of the purchase money, as the sale had been set aside. This was on 29 August 1932. The question arises whether this application is barred by limitation, which would depend on whether, as contended by the decree-holder, three years are allowed from the date of setting aside the sale or, as contended by the auction-purchaser, three years from the dismissal of the Letters Patent Appeal on 13th September 1929. The District Munsif of Pattukottai held that the application was in time. Against that finding the decree-holder preferred a revision petition to this Court (C.R.P. No. 306 of 1933) and at the same time appealed to the District Judge. The District Judge transferred the appeal to the Subordinate Judge, who held that the application was barred and dismissed the application. Against that finding this appeal (C.M.S.A. No. 132 of 1934) has been preferred and this C.M.S.A. and C.R.P. No. 306 of 1933 have come on for hearing together.

(2.) One of the questions for decision is whether an appeal lay against the order passed Under Order 21, Rule 93 by the District Munsif ordering refund of the purchase money. On behalf of the appellant three cases have been quoted which directly bear on this question. The first is Krishna Bhupati V/s. Venkataswamy AIR 1917 Mad 217, in which Sadasiva Iyer and Moore, JJ. held that in an application Under Order 21, Rule 93 no appeal lay. Another case of this Court referred to is Kunhammad V/s. Chathu (1886) 9 Mad 437, which was decided similarly. In both these cases no argument was adduced and I doubt whether they are any longer good law; for, they seem to have been decided on the assumption that an auction-purchaser is a stranger to the suit and that any point that arises between him and the parties to the suit did not therefore fall within the scope of Section 47. There can be no doubt from a very large number of eases decided in this Court and in other High Courts that the auction-purchaser can be looked upon as a representative of a judgment-debtor or decree-holder and, further, that when there is a matter in dispute between the decree-holder and the judgment-debtor, it makes no difference that the actual application which raises the matter is made by a stranger. The third case referred to is Rahim Baksh V/s. Dhuri (1890) 12 All 397, which is to the same effect. There is very little discussion even in that judgment; and the many cases referred to therein show that there was a very considerable conflict of authority on this point before Rahim Baksh V/s. Dhuri (1890) 12 All 397 was decided. That case is certainly no longer good law in Allahabad; for a Full Bench of the Allahabad High Court has given a definite finding to the contrary in Bindeshri Prasad V/s. Badal Singh AIR 1923 All 394.

(3.) On the other side, there is no direct decision on this point excepting Bindeshri Prasad v. Badal Singh AIR 1923 All 394, but a number of cases have been quoted in which it has been pointed out that matters in dispute between the auction-purchaser and the parties to the suit come properly Under Section 47, Civil P.C., if they relate to the execution, discharge, and satisfaction of the decree. In Veyindramuthu Pillai V/s. Maya Nadan AIR 1920 Mad 324, there was a conflict between the auction-purchaser in execution of a money decree who was a stranger and the auction-purchaser (decree-holder) in execution of a mortgage decree. The stranger auction-purchaser contended that he was a purchaser for value without knowledge of the mortgage, whereas the decree-holder purchaser contended that the purchase was made lis pendens and was therefore not binding on him. It was there held that the auction- purchaser was a representative of the judgment-debtor. The question whether the matter arose in execution was not decided by the Full Bench, as a definite finding that it did so arise had been given by the referring Judges. The scope of Veyindramuthu Pillai V/s. Maya Nadan AIR 1920 Mad 324 was explained very fully in the judgment of Krishnan, J. in Jainulabdin Sahib v. Krishna Chettiar AIR 1921 Mad 420. There, the judgment-debtor, in a separate suit, contended that the auction purchaser had trespassed on some of his lands which had not been sold: but the Court found that although the lands in question were not the subject matter of the mortgage or of the decree and were not even sold; yet the Amin had by mistake actually delivered them to the auction purchaser and that there was no trespass. It was held, following the Full Bench case, that this was a dispute in which the judgment-debtor and the decree- holder were adversely interested and that it did not matter that it was the auction purchaser with whom the judgment-debtor was actually contending. It was therefore held that the judgment-debtor should have raised this matter in execution and that a separate suit did not lie. In Sorimuthu Pillai V/s. Muthukrishna Pillai AIR 1933 Mad 598 there was a sale; but before confirmation had been ordered, the decree itself was set aside in appeal. The sale was confirmed and an application was then put in to set aside the sale Under Secs.47, 151 and Order 21, Rule 89. It was held that Order 21, Rule 89 did not apply; and the same test was applied by Madhavan Nair, J. in this case as was applied in Jainulabdin Sahib V/s. Krishna Chettiar AIR 1921 Mad 420, whether the judgment-debtor and the decree-holder were adversely interested in the point in dispute. It was held that they were, and that therefore Section 47 did apply and the matter could be gone into in execution. It is not difficult, I think, to distinguish these three cases from the present case; for in all three of them it was vary clear that the matters in dispute did arise in execution. It is however argued that in the present case the dispute is one relating to the discharge and satisfaction of the decree; because if the auction-purchaser succeeds, the decree would be unsatisfied; whereas if he fails the decree-holder will have retained possession of the money and the decree will be satisfied. This seems to be the view taken in Bindeshri Prasad V/s. Badal Singh AIR 1923 All 394. After approving the decision of the Full Bench of the Madras High Court in Veyindramuthu Pillai v. Maya Nadan AIR 1920 Mad 324 that a stranger purchaser at a Court auction is entitled and bound to have any question relating to the satisfaction of the decree decided Under Section 47, Civil P.C., the judgment goes on to discuss the Privy Council case, Prosonno Kumar Sanyal V/s. Kali Das Sanyal (1892) 19 Cal 683, in which their Lordships remarked that Courts in India were right in not placing too narrow a construction on the language of Section 244 (the present Section 47). It then refers to a recent decision of the same Court in Sitaram V/s. Janki Ram AIR 1922 All 200, with approval. The authority of this ruling is weakened by the fact that the Judges were undoubtedly influenced by the equities of the case before them; for they say: We are entitled to treat this application as coming within the provisions of that section. Even if we were not so satisfied, we should have been prepared to grant the relief asked for on the analogy of Section 144, in exercise of our inherent power Under Section 151 of the Code. There is admittedly no question outstanding between the parties except that which has been decided in this appeal, and to require the question to be now tried out in a regular suit would be merely to put the parties to unnecessary expense.