PADALINGA MUDALIAR Vs. ARUMUGHA MUDALIAR

JUDGEMENT

(1.) In the suit the claims made by the plaintiff were for a declaration that certain plots of land set out in Ex. H belonged to the plaintiff for recovery of possession of two plots 1-B and 1-D from the defendant and an injunction restraining him from interfering with the plaintiffs possession of other plots. The first Court decreed the suit in favour of the plaintiff and the appeal to the lower appellate Court was dismissed. The defendant presents this second appeal and contends (1) that a suit does not lie by reason of the provisions of Section 47, Civil Procedure Code, and (2) that on account of the dismissal of an execution application filed by the first plaintiff against the defendant all remedies in the suit are barred.

(2.) The facts shortly are as follows: - An adult and two minor members of a Mudaliar family owned certain properties which they mortgaged to the second plaintiff on 26 January, 1923. The mortgagee filed a suit and a decree was passed in O.S. No. 302 of 1927 on 23 January, 1928. On 1 May, 1931, in execution of the decree the properties were put up for sale and were purchased by the second plaintiff, the sale certificate Ex. C being granted on 26 June, 1931. Delivery of the properties was obtained except one plot 1-B. The defendant obstructed and resisted possession and in consequence the second plaintiff filed a petition to remove the resistance, which was dismissed. On 6 September, 1931, by Ex. A the second plaintiff sold all his rights in and his claim to the properties so purchased p to the first plaintiff. This plaintiff filed an execution application on 17 October, 1931, to remove the resistance of the defendant A in regard to plot 1-B which application was dismissed on 6 January, 1932. It is now necessary to refer to another suit S.C.S. No. 297 of 1928 filed by a stranger against the adult member only of the joint family who was one of the mortgagors in the earlier mentioned mortgage and a decree was obtained. This decree was passed on 3 May, 1928, a date subsequent to the decree in the earlier mortgage suit. In execution of that decree, the properties belonging to the Mudaliar family were put up for sale and were purchased by the defendant on 20 January, 1930, on which date the sale certificate was granted. The proceedings in respect of the Small Cause suit and the execution for sale of the properties thereunder were subsequent to the decree in the mortgage suit and during the proceedings arising thereout.

(3.) The plaintiff not having obtained possession of plots 1-B and 1-D filed the present suit on 19 February, 1932. I propose now to deal with the points of objection made under Section 47 of the Civil Procedure Code, the relevant provisions of which are as follows: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.