S M S MATHARASAPPA CHETTIAR Vs. PCMUTHU CHETTIAR

JUDGEMENT

(1.) The petitioner before me obtained a money decree against one Seemia Pillai and his co-parceners. In execution of the decree he purchased the property in dispute subject to a mortgage right created by the judgment-debtors. During the pendency of the application for sale a suit was brought by the mortgagees against the common judgment debtors and a decree was obtained. The present petitioner thereupon paid the money due under the mortgage decree and asked that satisfaction may be entered up. His application was resisted on the ground that he not being a representative of the judgment debtors had no locus standi to apply under Order XXI, Rule 2. Both the Courts below have upheld this contention and rejected the application of the petitioner. Against that order this civil revision petition has been filed.

(2.) An objection was taken in limine on the ground that if the contention of the petitioner is right, his proper course was to have preferred a civil miscellaneous appeal, against the order of the District Judge and not to file a revision petition, under Section 115, Civil Procedure Code. The petitioner was justified in complaining against the mode in which the Courts below had dealt with his application and he was justified further in coming to this Court under Section 115. Even if the contention is well founded I think this is a fit case in which, following Sridharavan Somayajipad v. Puramathan Somayajipad 23 M. 101 : 9 M.L.J. 350 : 8 Ind. Dec (N.S.). 464, I feel inclined to convert the civil revision petition into a civil miscellaneous appeal.

(3.) On the merits, my attention has been drawn to a very recent judgment of the learned Chief Justice and Kumaraswami Sastri, J, in which it was held after reviewing the earlier decisions that an auction-purchaser under a money decree is the representative of the judgment debtor. The decision of Sadasiva Aiyar, J., and Napier, J., in Kasthuri Aiyangar v. Arunachalam Chettiar 34 Ind. Cas. 350 : (1916) 1 M.W.N. 195 is against this view. My own inclination is to agree with the more recent judgment of the learned Chief Justice and Kumaraswami Sastri, J., having regard to the fact that, during recent years, they judicially have been in favour of an expanded application of Section 47 and have been impressing upon the Courts in India the necessity of disposing of such matters under the execution chapter rather than referring the parties to a regular suit. Moreover, as was pointed out in the latest judgment, the course of decisions in this Presidenoy strongly favours the view that an auction-purchaser under a money decree must be regarded as the representative of the judgment debtor. There is also the further fact, as pointed out in Pandaranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 17 M.L.J. 417 : 2 M.L.T. 466, that the present petitioner has become the owner of the property and as such in his own right is entitled to see that his rights are not jeopardised by an adverse decree against the persons from whom he acquired title. Order XXI, rules 1 and 2, do not in themselves lay down as to who ought to make an application for entering up satisfaction. As was pointed out in Panduranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 17 M.L.J. 417 : 2 M.L.T. 466, a person who has got a right to the property can well be within his rights in applying for entering up satisfaction of the decree which would otherwise endanger his right to the property. I, therefore, hold that the Courts below are wrong in the view they have taken that the petitioner had no locus standi to come in under Order XXI, Rule 2. I reverse the orders of the Courts below and direct the Court of first instance to dispose of the application on the merits. Costs will abide.