Madras High Court
T.Muthukumarasamy vs J.Selvasundarraj on 3 March, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.03.2017 Reserved on: 25.11.2016 Delivered on: 03.03.2017 CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR Second Appeal (MD) No.62 of 2011 C.M.P.(MD) No.4235 of 2016 T.Muthukumarasamy : Appellant/Appellant/Defendant -Vs-. J.Selvasundarraj : Respondent/Respondent/Plaintiff Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the learned Principal Subordinate Judge, Tirunelveli in A.S.No.49 of 2010 dated 28.07.2010 confirming the Judgment and Decree of the learned Principal District Munsif, Tirunelveli in O.S.No.229 of 2008, dated 05.02.2010. !For Appellant : Mr.V.Kannan ^For Respondent : Mr.M.P.Senthil :JUDGMENT
The defendant in the suit in O.S.No.229 of 2008 on the file of the Principal District Court, Tirunelveli, is the appellant in this Second Appeal.
2.The brief facts that are necessary to dispose of this Second Appeal are as follows:
2.1.The suit property originally belonged to the defendant and a suit came to be filed in O.S.No.56 of 1982 by Indian Bank against the defendant for recovery of money. To execute the money decree, the Indian Bank filed execution petition in E.P.No.18 of 1995 and brought the suit property for sale. The suit property was purchased by the plaintiff in the Court auction sale that was held on 12.11.1999 for a sum of Rs.25,100/-. The sale was confirmed on 12.01.2000 and a Sale Certificate was also obtained by the plaintiff. The plaintiff, after obtaining the Sale Certificate, filed E.A.No.183 of 2000 for delivery of possession and the said application was dismissed for default.
2.2.In the meanwhile, it appears that there was another suit for partition by the defendant's sisters at the instance of the defendant and the same was also dismissed. The plaintiff failed to take steps to restore the application for delivery of possession and according to him, he came to know about the dismissal of the application for default after few years.
Thereafter, the present suit is filed for declaration of title and for recovery of possession from the defendant. The trial Court decreed the suit as prayed for. Aggrieved by the same, the defendant preferred an appeal in A.S.No.49 of 2010 on the file of the Principal Sub Court, Tirunelveli. The appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. As against the concurrent judgment and decree of the Courts below, the above Second Appeal has been preferred by the defendant.
3.Though several substantial questions of law have been raised by the learned counsel for the appellant, this Court framed the following substantial questions of law while admitting the Second Appeal:
(1) Whether a separate suit by the auction purchaser for recovery of possession is barred under Section 47 of Civil Procedure Code?
(2) Whether the respondent / plaintiff, having filed an application in execution for the delivery of the property based on his purchase in the auction conducted in execution of the decree and having allowed it to be dismissed for default, is debarred from filing a suit for the delivery of the property purchased in Court auction?
4.On the first question of law, the learned counsel for the appellant submitted that a separate suit is barred in view of Section 47 of Civil Procedure Code. Section 47 of Civil Procedure Code reads as follows:
?47. Questions to be determined by the Court executing decree.-
(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) omitted by Act 104 of 1976. effective from 1-2-1977 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.
Explanation I: For the purposes of this section, a plaintiff whose Suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation ll: (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the degree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.?
5.In the case of Harnandrai v. Debidutt reported in AIR 1973 SC 2423 the Hon'ble Supreme Court has observed as follows:
?Having regard to this consideration, if any question is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit.?
?Having regard to this, all questions arising between the auction purchaser and the judgment- debtor must in our view be determined by the executing court and not by a separate suit.?
The question arose for consideration was whether after an auction sale in execution of a decree, a decree holder auction ? purchaser can move the executing Court for delivery of vacant possession of an immovable property or whether he has to file a separate suit. The above judgement would only suggest that after amendment of Section 47, the auction purchaser can apply for possession without resorting to a separate suit. However, the maintainability of the suit is not stated to be barred.
6.The issue is no more res integra as the position is made clear by Hon'ble Supreme Court in Balakrishnan v. Malaiyandi Konar reported in 2006 (3) SCC 49. The Hon'ble Supreme Court has categorically held that a person who failed to avail a quick remedy to get delivery of possession through the Executing Court can file a regular suit for possession based on title, subject to law of limitation.
7.In the judgment of Hon'ble Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and another reported in JT 1996 (5) SC 201 was followed. The Hon'ble Supreme Court has held as follows:
?13.There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one year limitation, now prescribed under Article 134 of the Limitation Act 1973, in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act of 1908. is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing quick forum to the auction-purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail such quick remedy the law relegates him to the remedy of a suit for possession in a regular way.?
8.In the case of The Nazereth Co-operative Building Society Ltd. v. Kanagaraj reported in 2003 (3) CTC 217 this Court has followed Hon'ble Supreme Court and observed as follows:
?25. The principles laid down by the High Courts and the Honourable Apex Court would disclose that the fact of not initiating proceedings under Section 47 of the Code of Civil Procedure as contemplated under Article 134 of the Limitation Act, which is for quicker remedy, cannot bar the auction purchaser to approach the competent Court under common law to take delivery of possession within a period of 12 years from the date of the sale being made absolute. Therefore, the contention raised by the learned counsel appearing for the respondent that the suit is barred under Section 47 of the Code of Civil Procedure cannot be sustained in view of the case laws cited above.?
9.In the case of Vaenda and others v. D.G.Narasimhan and others reported in 2009 (2) TLNJ 465 (Civil) this Court, after referring to some of the judgments, has held as follows:-
?11. A plain reading of the Apex Court's judgments, would leave no doubt in the mind of the Court that the Hon'ble Apex Court set at rest the controversy that a party who failed to avail the quicker remedy of filing an E.P. and taking delivery within one year from the date of confirmation of sale, could file a suit for delivery within a period of 12 years as contemplated under the Limitation Act. On this very same type of controversy this Court held unambiguously and unequivocally, incontrovertibly and indubitably that filing E.P. and taking delivery is quicker and that in no way would preclude the party from seeking delivery of possession resorting to the common law remedy of obtaining delivery within a period of 12 years. The recent two judgments of the Hon'ble Apex Court cited supra settled the law on that point.?
10.The above view is reiterated by Hon'ble Supreme Court in several cases. Hence, the first question of law is answered against the appellant.
11.However, the learned counsel for the appellant submitted that the respondent who has filed an application for delivery before the Executing Court allowed that application to be dismissed for default. In such circumstances, the respondent cannot maintain a suit on the same cause of action. According to him, the respondent who has elected to get the quicker remedy is estopped from filing another suit after suffering an adverse order. The learned counsel on both sides relied upon several judgements on the doctrine of Elution.
12.In the case of A.P. State Financial Corporation v. Gar Re- rolling Mills and another reported in (1994) 2 SCC 647 the question that fell for consideration before Hon'ble Supreme Court was whether the Financial Corporation set up under Section 3 of the State Financial Corporation Act is entitled to take recourse to the remedy available to it under Section 29 of the Act even after having obtained an order invoking the provisions of Section 31 of the Act but with out executing the decree / order?
13.The answer is given in para 15 and 16 of the judgement which are extracted below:
?15.The Doctrine of Election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different. To hold otherwise may lead to injustice and inconsistent results. Since, the Corporation must be held entitled and given full protection by the Court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. In our opinion the Corporation can initially take recourse to Section 31 of the Act but withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of the Act, which section deals with not only the rights but also provides a self- contained remedy to the Corporation for recovery of its dues. If the Corporation chooses to take recourse to the remedy available under Section 31 of the Act and pursues the same to the logical conclusion and obtains an order or decree, it may thereafter execute the order or decree, in the manner provided by Section 32(7) and (8) of the Act. The Corporation, however, may withdraw or abandon the proceedings at that stage and take recourse to the provisions of Section 29 of the Act. A 'decree' under Section 31 of the Act not being a money decree or a decree for realisation of the dues of the Corporation, as held in Gujarat State Financial Corpn. v. Naatson Mfg. Co. P. Ltd. I recourse to it cannot debar the Corporation from taking recourse to the provisions of Section 29 of the Act by not persuing the decree or order under Section 31 of the Act, in which event the order made under Section 31of the Act would serve in aid of the relief available under Section 29 of the Act.
16.The doctrine of election, as commonly understood, would, thus, not be attracted under the Act in view of the express phraseology used in Section 31 of the Act, viz., "without prejudice to the provisions of Section 29 of this Ace,. While the Corporation cannot simultaneously pursue the two remedies, it is under no disability to take recourse to the rights and remedy available to it under Section 29 of the Act even after an order under Section 31 has been obtained but without executing it and withdrawing from those proceedings at any stage. The use of the expression "without prejudice to the provisions of Section 29 of the Act" in Section 31 cannot be read to mean that the Corporation after obtaining a final order under Section 31 of the Act from a court of competent jurisdiction, is denuded of its rights under Section 29 of the Act. To hold so would render the above-quoted expression redundant in Section 31 of the Act and the courts do not lean in favour of rendering words used by the Legislature in the statutory provisions redundant. The Corporation which has the right to make the choice may make the choice initially whether to proceed under Section 29 of the Act or Section 31 of the Act, but its rights under Section 29 of the Act are not extinguished, if it decides to take recourse to the provisions of Section 31 of the Act. It can abandon the proceedings under Section 31 of the Act at any stage, including the stage of execution, if it finds it more practical, and may initiate proceedings under Section 29 of the Act.?
14. In Transcore Vs Union of India & Another reported in AIR 2007 SC 712, the Hon'ble Supreme Court has held that withdrawal of application before the Debt Recovery Tribunal is not a pre-condition for taking recourse to SARFAESI Act and it is for the Bank or financial institution to exercise its discretion. It is observed that the remedies under DRT Act and SARFAESI Act are complementary to each other and that SARFAESI Act is not in derogation of DRT Act.
15.The Honourable Supreme Court in Mandia Chemicals Ltd & others v. Union of India and others reported in AIR 2004 SC 2371 has held that Banks can take action simultaneously under SARFAESI Act and DRT Act, as there is no conflict of interest involved.
16.In the case of U.Kirubanandam v. State Bank of India reported in (2012) 7 MLJ 666 this Court has held as follows:
?23. In contrast, the action initiated by a Bank under the SARFAESI Act, 2002, is similar to an action under Section 69(1) of the Transfer of Property Act. In case of mortgagees other than Banks and Financial Institutions covered by the SARFAESI Act, 2002, the mortgagees may have to exercise a choice. This is in view of the fact that the right under Section 69(1) should be specifically conferred by the Deed of Mortgage itself. But SARFAESI Act, 2002, is a special enactment. The statute confers the right of sale upon the Bank without the intervention of the Court. Therefore, such a statutory right does not get curtained by the application of the doctrine of election, especially when the remedy under the SARFAESI Act, 2002, is an additional remedy.?
17.In the case of Transcore v. Union of India and another reported in 2006 (5) CTC 753 the Hon'ble Supreme Court in paragraph 45 has observed as follows:
?45.In the light of the above discussion, we now examine the doctrine of election. There are three elements of election, namely, existence of two or more remedies; inconsistencies between such remedies and a choice of one of them. If any one of the three elements is not there, the doctrine will not apply. According to American Jurisprudence, 2d, Vol. 25, page 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Equity (Thirty-first Edition, page 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application''
18.In the case of National Insurance Co. Ltd. v. Mastan and another reported in (2006) 2 SCC 641 the Hon'ble Supreme Court in paragraphs 21 and 23 has observed as follows:
?21. ... A party to a lis, having regard to the different provisions of the two Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for one.
23.The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. .Although there are certain exceptions to the same rule but the same has no application in the instant case.?
19.Similar view has been expressed by Hon'ble Supreme Court in Oriental Insurance Company Ltd. v. Dyamavva & others reported in 2013 (9) SCC
406. In this case, it is held that unless the claimants had exercised their option to seek compensation under Workmen's Compensation Act, 1923, they are not precluded from seeking compensation under the provision of the Motor Vehicles Act,1988.
20.Considering the above cases and the doctrine of election, it has to be formulated as follows:
a) When the ambit and scope of the two remedies are different, the doctrine has no application.
b) To apply the doctrine, there must be existence of two or more remedies and such remedies should be inconsistent so that there is no conflict of interest involved while pursuing the remedies.
If the above principles are kept in mind, the application under Order 21, Rule 95 is only a quicker remedy. Separate suit based on title is independent and well protected under common law principles.
21.The learned counsel appearing for the respondent submitted that the earlier order dismissing the petition filed under Section 47 C.P.C for default would not operate as res judicata as there was no decision on merits. He also relied upon a judgement of Hon'ble Supreme Court in the case of Shivashankar v. Baikunth reported in AIR 1969 SC 971 wherein the Hon'ble Supreme Court has observed as follows:
?Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment-debtor of an application filed by him Under Section 47, Civil Procedure Code resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed by him.?
22.The learned counsel for the respondent further relied upon a Full Bench decision of the Andhra Pradesh High Court in Raziuddin Mohd. Siddiqui v. Zainab Khatoon reported in 2005 (1) CTC 179 it has been observed as follows:
?Even after the dismissal of an application to set aside an ex parte decree under Order 9, Rule 13 a regular appeal against the decree is maintainable.?
23.The learned counsel then relied upon another judgement of the Apex Court in Bhanu Kumar Jain v. Archana Kumar & Another reported in 2005 (1) CTC 368 the Hon'ble Supreme Court has observed as follows:
?24.When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.?
24.In the case of Shri Ajit Chopra v. Shri Sadhu Ram and others reported in (1999) 9 Supreme 297 the Hon'ble Supreme Court has observed as follows:
?29.But after Raghunath Singh and Ors. Vs. Hansraj Kunwar and Ors. ( 1934 ILR (56) All. 561) was decided by the Privy Council, Vedapuratti stood impliedly overruled. Their Lordships held in that case that when execution of a decree for redemption was allowed to get barred, a fresh suit would lie. The important principle laid down by Lord Russell of Killowen in regard to the right to redeem was that the "right was not barred by res judicata". It meant that the Full Bench case in Vedapuratti which overruled Kutti Ali was no longer good law. This position became clear when a similar question arose before a Full Bench of the Madras High Court in Viroopakshan Vs. Chambu Nayar and Ors. (1937 ILR Mad. 545). That was again a case of a second suit for redemption, the execution in the first suit having become barred.
Varadachariar J ( as he then was ), after referring to the decision of the Privy council observed that the Full Bench decision in Vedapuratti was no longer good law and a second suit lay "unless .......the right of redemption has been extinguished in one of the modes contemplated by the statutes and that the mere fact that a decree for redemption obtained on a former occasion has not been executed will not prevent the mortgagor from maintaining a subsequent suit for redemption". The result was that with the overruling of Vedapuratti, the decision in Kutti Ali revived. To the extent Mayankutti Vs. Kunhammad ( 1917 ILR (41) Mad 641) ( which was relied upon by the High Court in the judgment under appeal before us) dissented from Kutti Ali, the said dissent would therefore no longer hold good. That is how, Kutti Ali still remains and governs the situation on the facts before us.
32.In our view, the decision in Kutti Ali and in Amina are directly in point and are correctly decided. Both relate to an earlier suit based on a lease when the execution of the decree was time barred and the second suit was based on title. The second suit was held neither barred by section 47 CPC nor by section 11 CPC. So far as mortgage cases are concerned, the position stood settled long back by the decision of the Privy Council in Raghunath Singh's case as explained in the Full Bench in Viroopakshan. In fact, this Court approved the Privy Council judgment in Raghunath Singh and held that a second suit for redemption was maintainable even if the earlier decree for redemption stood barred by limitation. (see Mhadaagonda Ramgonda Patil and Ors. Vs. Shripal Balwant Rainade and Ors. [1988 (3) SCC 298], Maganlal Vs. Jaiswal Industries, Neemach and Ors. [1989 (4) SCC 344] and Harbans Singh and Anr. Vs. Guran Ditta Singh and Anr. [1991 (2) SCC 523]. We, accordingly hold on the above line of cases that the present suit is not barred by Section 11 or Section 47 of the Code of Civil Procedure.
35.The result is a judgment and decree, which was passed in a previous suit under the Rent Control Act by which it was held that respondent was tenant and that he was required to vacate the premises on or before 19.12.1958, would not bar a fresh suit for recovery of possession from a tenant. Reason being that the tenant has not acquired title over the property by adverse possession. It is true that the appellant could have executed the decree passed in the said suit. He had not executed the same on the alleged ground that there was a fresh agreement of tenancy. Whatever may be the position, after lapse of three years it was not open to the appellant to file an application for executing the said decree under the Limitation Act, 1908. Still there is no bar under the Rent Act or under the Limitation Act, 1908. Still there is no bar under the Rent Act or under the Code of Civil Procedure for filing a suit for recovery of possession from the tenant, who had failed to deliver the possession on the basis of a decree passed against him. Unless, the defendant - tenant establishes that he has become owner of the suit property by adverse possession, the suit filed by the owner on the basis of his title cannot be dismissed despite the fact that application for the execution of the decree passed under the Rent Act was barred after lapse of three years. The title of the plaintiff over the suit property was not extinguished (i) by the act of the parties including adverse possession, (ii) by the decree of the Court or (iii) by not executing the decree which was passed in a previous suit. If there is any agreement between the parties after passing of the decree, permitting the tenant to continue in the premises, he may either be a tenant, licensee or a trespasser. Presuming that no fresh tenancy was created or license was granted then also respondent has failed to acquire title by adverse possession on the date of the suit i.e. 5.8.1970, because as per the decree he was entitled to occupy the premises up to 19.12.1958 as a tenant. By lapse of time, plaintiff has lost right to execute the previous decree as it became time-barred but has not lost the title. Unless the title is extinguished, second suit by the owner if filed within period of limitation is not barred.?
25.In the case of Pattam Khader Khan v. Pattam Sardar Khan and another reported in (1996) 5 SCC 48 the Hon'ble Supreme Court has observed as follows:
?13.There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one year limitation, now prescribed under Article 134 of the Limitation Act 1973, in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act of 1908. is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing quick forum to the auction-purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail such quick remedy the law relegates him to the remedy of a suit for possession in a regular way.
14.Thus, for the aforesaid reasons, we have no hesitation to allow this appeal, set aside the impugned orders of the High Court, restoring that of the First Court, which we hereby do, relegating the first respondent to the remedy of a suit, should he be so advised, but without any order as to costs.?
26.The Hon'ble Supreme Court has thus permitted the auction purchaser who failed to file an application in time for delivery to file a suit. Hence, the issue is no more res integra with regard to the second question of law also. The above judgment was followed by Hon'ble Supreme Court in Balakrishnan v. Malaiyandi Konar reported in 2006 (3) SCC 49 and it has been held as follows:-
?13.The limitation for the purpose of Article 134 starts from the date of confirmation of sale. (See Ganpat Singh (dead) by Lrs. v. Kailash Shankar and Ors. 1987 (3) SCC 146). In Pattam Khader Khan v. Pattem Sardar Khan and Anr. (1996 (5) SCC 48) this court held that it is not from the date when sale certificate is issued that the limitation starts running. The sale becomes absolute on confirmation under Order XXI Rule 92 of the Code effectively passing title. It cannot be said to attain finality only when sale certificate is issued under Order XXI Rule 94. There can be variety of factors conceivable for which delay can be caused in issuing a sale certificate. The period of one year limitation now prescribed under Article 134 of the Limitation Act in substitution of a three year period prescribed under Article 180 of the Indian Limitation Act, 1908 is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask for the delivery of possession of the property purchased within that period from the date of the sale becoming absolute rather than from the date of issuance of the sale certificate. On his failure to avail such a quick remedy the law relegates him to the remedy of a regular suit for possession based on title, subject again to limitation.?
27.Therefore, the questions of law raised herein are answered by holding that the suit for declaration of title and for recovery of possession on the basis of the title of the auction purchaser is not barred under Section 47 C.P.C. and that even after dismissal of an application filed by the auction purchaser under Order 21, Rule 95 for delivery of possession for default or on the ground of limitation, the auction purchaser can file a suit for declaration of title and for recovery of possession within twelve years. Hence, the above second appeal is dismissed confirming the judgment and decree of the Courts below. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Principal Subordinate Judge, Tirunelveli.
2.The Principal District Munsif, Tirunelveli.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai..