VEYINDRAMUTHU PILLAI Vs. MAYA NADAN

JUDGEMENT

(1.) The opinion of the Full Bench has established that Section 47, C.P.C. is applicable to these proceedings. It is however objected further that they are covered also by Order XXI, Rule 103 and that in accordance with it in the absence of a suit the order of the Lower Court is conclusive. It is to be observed that the reference to " any party " in the rule is to any party to the petition, not to the decree under execution. This is clear in view of the form of the provisions in the previous Code and the division of the former Section 335 into two parts, of which the present rule represents the second. The expression " any party " being interpreted in the manner suggested, there is no reason for holding as has been held in connection with the similar claim petition procedure that the rule excludes the application of Section 47 to cases, such as the present, between parties or their representatives.

(2.) To turn next to the merits, the material facts are that the appellant is or represents the purchaser at a Court sale held in execution of a money decree. After this attachment but before the sale a suit was instituted on a mortgage of the properties sold and was pending at the date of the appellant s purchase. Later a decree for sale was passed and the respondent bought when the sale took place. On his claiming delivery he found the appellant already in possession and the decisions under appeal depend on the Lower Court s conclusion that as they were there in virture of a purchase pendente lite the respondent was entitled to oust them, their right, if any, to redeem the mortgage decree and obtain possession being enforceable if at all by means of a separate suit which they were at liberty to bring.

(3.) Argument has been based to a great extent on the fact that the attaching creditor, with reference to Section 91 of the Transfer of Property Act should have been made a party to the mortgage suit and that as he was not, the appellants purchasing at the sale held under his attachment are in some manner entitled to treat the proceedings in the mortgage suit as not binding on them. But neither Section 91 nor Order 34, Rule 1, which is also relied on confers on an attaching creditor any interest in the equity of redemption in the mortgaged property; they are merely statutory provisions for his right to redeem and to be impleaded in proceedings on the mortgage. Independently of these provisions and as an attaching creditor, he obtained no interest in the property and nothing to which any equity in his favour founded on the infringement of those provisions could be annexed or which could pass from him to the purchaser at the sale held at his instance, or which he could after he had purchased himself (as he has done here) rely on as improving his title. This was the view taken in Shananda Chandra Pal v. Sri Naih Roy Choudry (1912) 17 C.W.N. 871 and I concur with the learned Judges responsible for that decision in dissenting from Gulam Hussain v. Dina Nath (1901) I.L.R, 23 All. 467 to this extent and for the reasons they give. Reliance also has been placed on Venkata-seetharamayya v. Venkaramayya (1912) I.L.R. 37 Mad. 418 in which Ghulam Hussain v. Dina Nath (1901) I.L.R, 23 All. 467 was followed, and on the references in it to the interest of the attaching creditor. But whilst it may be doubted whether those references were an accurate description of the attaching creditor s position, it is material that the question before the Court was whether he was entitled to bring the property to sale, not whether the purchaser at such a sale was entitled to retain possession.