Madras High Court
Mohan vs Varalakshmi Ammal Alias Annapoorani ... on 5 October, 1990
Equivalent citations: (1990)2MLJ552
ORDER Ratnam, J.
1. This civil revision petition is directed against the order of the learned District Munsif, Tindivanam, in E.A. No. 1042 of 1985 in O.S. No.652 of 1969 dismissing that application filed by the petitioner Under Section 47, C.P.C. praying that the decree in O.S. No.652 of 1969, District Munsif's Court, Tindivanam, should be held to be unenforceable and that the execution proceedings therein at the instance of the respondent are invalid. Briefly stated, the facts giving rise to this civil revision petition are as follows: The respondent herein is the wife of one Subramania Chettiar. She instituted O.S. No.652 of 1969, District Munsif's Court, Tindivanam, against her husband Subramania Cheuiar praying for recovery of Rs. 1,650 towards past maintenance and future maintenance at Rs.100 per mensum. With a charge on the house property hearing door No.18, Perumal Koil Street, Tindivanam. On 8-9-1969, the respondent obtained a decree in O.S. No. 652 of 1969 as prayed for by her with a charge over the property. In execution of this decree, the respondent filed E.P.No.733 of 1981 praying for the sale of the property charged under the decree and in the court-sale held on 6-2-1985, the respondent purchased the property with permission of Court and a sale certificate was also directed to be issued to her on 17-2-1988. The father of the petitioner, One Sambasiva Chettiar, instituted O.S. No.231 of 1969, District Munsif's Court, Tindivanam, against Subramania Chettiar, the hujsband of the respondent herein, for the recovery of certain amounts stated to be due from him and obtained decree in that suit on 21-4-1969. That decree was put into execution in E.P.No. 960 of 19(59, subject to the rights of the respondent herein under the decree obtained by here in O.S. No. 652 of 1969 and the property referred to earlier was brought to sale in court auction and the petitioner purchased the property and a sale certificate was also issued in his favour on 21-8-1972. Pursuant to the court-sale, the petitioner applied for delivery of possession and obtained the same on 8-9-1972. It may also be mentioned that Sambasiva Chettiar, the father of the petitioner and the decree holder in O.S. No.231 of 1969, instituted O.S. No. 257 of 1970, Sub Court, Cuddalore, purporting to represent the general body of creditors of Subramania Chettiar, against the respondent herein and others praying for a declaration that the decree obtained by the respondent in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, and other decrees are collusive decrees. That suit was resisted by the respondent in relation to the decree obtained by her in O.S. No.652 of 1969 on the ground that the decree obtained by her was neither collusive nor fraudulent and this plea was accepted and the suit in O.S. No.257 of 1970 in so far as it related in O.S. No.652 of 1969 and another decree in O.S. No. 651 of 1969 was dismissed on 26-11-1974 and an appeal there from in A.S.No. 36 of 1975 before the District Judge of South Arcot at Cuddalore, was also dismissed on 25-3-1980. Thereafter, Sambasiva Chettiar preferred E.A.No. 332 of 1982 before this Court and during its pendency, he died and the petitioner was brought on record in the second appeal as one of his legal representatives and that second appeal was also dismissed on 21-9-1990. In E.A. No. 1042 of 1985 filed by the petitioner. Under Section 47, C.P.C. he claimed that Subramania Chettiar; the defendant in O.S. No. 652 of 1969, had not been heard of since 1968 and his whereabouts had not been known and he should be presumed to be dead, and, therefore, the further proceedings taken by the respondent herein in execution of the decree obtained by her in O.S. No.652 of 1969 were all invalid and the court-sale held in O.S. No. 652 of 1969 should also be set aside. In the counter filed by the respondent, she disputed that since 1968 her husband had not been heard of and his whereabouts had not been shown and that he should be presumed to be dead and further stated that she had executed the decree according to law and the petitioner has no locus standi whatever either to maintain the application under Section 47, C.P.C. or even to question the court-sale in her favour in execution of the decree in O.S. No. 652 of 1969, District Munsif's Court Tindivanam.
2. Before the Court below, on behalf of the petitioner, Exhibits A-1 to A-6 were filled and the petitioner and two others were examined as P.Ws. 1 to 3, while, on behalf of the respondent, Exhibits B-l, and B-2 were marked and the respondent and another gave evidence as R.Ws 1 and 2. On a consideration of the oral as well as the documentary evidence, the Court below found that the petitioner had not established that the judgment-debtor in O.S. No. 652 of 1969, viz., Subramania Chettiar had died by the time the execution proceedings in that suit were commenced and that the petitioner is not entitled to any of the reliefs prayed for. On those conclusions, E.A. No. 1042 of 1985 was dismissed, against which the petitioner preferred C.R.P. No. 3007 of 1988. On 28-11-1968, that civil revision petition was dismissed even at the stage of admission and that order was carried on in appeal before the Supreme Court in Civil Appeal No. 5017 of 1969 and by order dated 7-12-1969, the Supreme Court directed the petitioner to file a certified copy of the sale certificate in O.S. No.231 of 1969, District Munsif's Court, Tindivanarn, as well as the entertaining of the civil revision petition was admitted and that is how the matter has again come up before this Court.
3. The main question that arises for consideration in this civil revision petition is, whether the petitioner can maintain the application under Section 47, C.P.C. It is not in dispute that the respondent, in execution of the decree obtained by her in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, against her husband Subramania Chettiar, had, in E.P.No. 733 of 1981, brought the house property to sale and purchased it in court auction on 6-2-1985, in respect of which a sale certificate had also been directed to be issued to her on 17-2-1988. Equally, there is no dispute that in execution of the decree obtained by the father of the petitioner, the husband of the respondent herein, in O.S. No. 271 of 1969, District Munsif's Court, Tindivanam, in E.P. No. 960 of 1969, the same house property had been brought to sale, subject to the rights of the respondent in O.S. No. 652 of 1969, and purchased by the petitioner on 21-8-1972, as shown by the sale certificate now filed. The petitioner had filed E.A.No.1042 of 1985 purporting to be under Section 47, C.P.C. in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam. Under Section 47, C.P.C. it is provided that 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. A further provision is also made to the effect that 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 II(a) to Section 47, C.P.C. substituted by Amending Act 104 of 1976 stated that for purposes of Section 47, C.P.C. 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 decree is passed. Explanation II(b) is not quite relevant for present purposes. It is in the background of the aforesaid provisions, the maintainability of the application filed by the petitioner under Section 47, C.P.C. has to be considered To the suit O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, the petitioner was not a party. Realising this, learned Counsel for the petitioner contended, relying upon Explanation II(a) to Section 47, C.P.C. that the petitioner should be deemed to be a party of O.S. No. 652 of 1969, as he had purchased the property in court auction, though in execution of the decree in O.S. No. 231 of 1969, District Munsifs Court, Tindivanam, and relied upon the decision reported in A.V.Rama-sw.amy Iyengar v. The Syndicate Bank, 1980 T.L.N.J. 99. On the other hand, learned Counsel for the respondent submitted that the petitioner cannot at all be considered as a party to O.S. No. 652 of 1969, as, admittedly, he was not a party to that suit and he had also not purchased the property in execution of the decree in that suit, viz., O.S. No. 652 of 1969 and under those circumstances, Explanation II(a) to Section 47, C.P.C. would not at all stand attracted and further that the decision in A.V.Ramaswamy Iyangar v. The Syndicate Bank 1980 T.L.NJ. 99 would be inapplicable as well, as it proceeds upon an assumption of a fiction upon a fiction, for which there is no warrant in the language of Explanation II (a) to Section 47, C.P.C.
4. There cannot be and indeed there is no dispute that the petitioner was not a party to O.S. No. 652 of 1969, District Munsifs Court, Tindivanam, as the respondent herein was the plaintiff in that suit and her husband Subramania Chettiar was the defendant. Considering the array of parties in O.S. No. 652 of 1969, the petitioner cannot be considered to be a party to the suit O.S. No. 652 of 1969. Under Explanation II(a) to Section 47, C.P.C., by a deeming provision, a purchaser of property at a sale in execution of a decree is regarded as a party to the suit in which the decree is passed. This Explanation had been inserted with a view to set at rest a controversy that had prevailed once whether a court auction purchaser can be regarded as a party to the suit or not. Having regard to the purpose for which Explanation II(a) to Section 47, C.P.C. had been inserted, it is seen that the purchaser of property at a Court-sale in execution of a decree, by a fiction, is deemed to be a party to the suit in which the decree is passed. Obviously, therefore, the passing of the decree in the suit and the execution of the decree so passed, have reference to the same suit and not different suits. This is reinforced by limiting the operation of the deeming provision making the court auction purchaser a party, to the suit in which the decree is passed. The object of Explanation II(a) to Section 47, C.P.C. is to make the court auction purchaser in execution of decree in a particular suit, a party to that suit, as the decree passed in that suit had been put into execution and the property is purchased by the court auction purchaser in-that suit, and it cannot have any reference whatever to suit other than the one in which the decree is passed and by the purchase of the property in execution of the decree in which suit, the court auction purchaser is deemed to be a party to that suit. In other words, by reason of the court auction purchaser in execution of a decree in one suit, such purchaser, cannot claim to be a party to another suit, without reference to a purchase in court auctioif in execution of the decree in that other suit. The use of the expression, "deemed to be a party to the suit" (underlining mine) shows that the court auction purchaser is deemed, by the fiction enacted, to be a party to that suit, in which the decree is passed and in execution of which decree, the property is purchased by the court auction purchaser and not any other suit or the purchase of property in execution of a decree in another suit. In view of this, the petitioner, at best, by reason of Explanation II(a) to Section 47, C.P.C. can be deemed to be a party to O.S. No. 231 of 1969, District Munsifs Court, Tindivanam, pursuant to the decree in which he purchased the property in court auction on 21-8-1972 and he cannot be regarded as a party at all to O.S. No.652 of 1969, District Munsif's Court, Tindivanam, in the course of the execution of the decree in which the petitioner neyer purchased the property. In view of this, the petitioner cannot, by reason of his having purchased the property in court auction in O.P. No. 231 of 1969, District Munsifs Court, Tindivanam, and invoking Explanation II(a) to Section 47., C.P.C. claim that he is a party to O.S. No.652 of 1969 also, as to maintain an application under Section 47, C.P.C. as a party to O.S. No.652 of 1969. It would be appropriate at this stage to refer to the decision in A.V. Ramaswamy lyengar v. The Syndicate Bank 1980 T.L.N.J. 99 relied on by learned Counsel for the petitioner. Explanation II(a) to Section 47, C.P.C. had been construed therein by Sathiadev, J. as having the effect of asking the purchaser of a property in court auction sale in execution of the decree in one suit, deemed party to another suit, in which the same property is brought to sale and that the amendment had been ushered in to set it rest conflict of decisions on the point and that by deciding the question under Section 47, C.P.C., no prejudice would be caused, as its object is to decide all questions relating to execution, discharge or satisfaction. The view so taken is not only opposed to the language employed in Explanation II(a) to Section 47, C.P.C., but also widens the scope of the deeming provision by reading into it another deeming provision, as it were, asking the court auction purchaser in execution of a decree in one suit, a party to another suit in execution of the decree in which he had never purchased the property. The circumstances that the same property happened to be the subject-matter of court-sale in execution of the decrees in two suits would not justify the application of Explanation II(a) to Section 47, C.P.C. to sale of the court auction purchaser in one suit, a party to the other suit, in the execution proceedings in which he might not have participated at all. The interpretation put upon Explanation II(a) to Section 47, C.P.C. in the decision referred to above is wider than the Explanation itself and is not warranted by the language employed in Explanation II(a) to Section 47, C.P.C. The function of a court is to interpret the deeming provision, as it is and not read into it more than what had been stated therein and create a tier of deeming provisions. In view of the language employed in Explanation II(a) to Section 47, C.P.C. restricting the applicability of the deeming provision to the Court auction purchaser in execution of a decree in the suit, it follows that it can never comprehend the Court auction purchaser in execution of another decree in another suit, as in this case. In view of this, the reliance placed by learned Counsel for the petitioner upon the decision referred to earlier is of no assistance to him as it proceeds on as erroneous interpretation of Explanation II(a) to Section 47, C.P.C., it has, therefore to be held that the petitioner cannot by any stretch of imagination be deemed to be a party to O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, by reason of his court auction purchase in execution of the decree in O.S. No.231 of 1969, District Munsif's Court, Tindivanam.
5. Learned Counsel for the petitioner next contended that the petitioner would fall within the scope of the expression "representative" under Section 47(1), C.P.C. and would, therefore, be entitled to maintain the application. In this connection, reliance was also placed by learned Counsel for the petitioner; upon the decisions reported in Manicka Chettiar v. Rajambal Ammal (1955) 2 M.L.J. 357 and Tirugnana Sambanda Mudaliar v. Meenakshi . On the other hand, learned Counsel for the respondent submitted that the petitioner cannot be regarded as the representative of any of the parties in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam, as there has been no devolution of the interest of either the plaintiff or the defendant in that suit, as a result of the purchase in Court auction by the petitioner in execution of the decree in O.S. No. 231 of 1969, especially when the purchases by the petitioner in O.S. No.231 of 1969, District Munsif's Court, Tindivanam, was also subject to the rights of the respondent urder the decree obtained by her in O.S. No.652 of 1969, District Munsif's Court, Tindivanam.
6. The question of the petitioner being a representative within the meaning the Section 47(1), C.P.C. has to be looked at from the view point of the devolution of the interest of either the plaintiff or the defendant in O.S. No. 652 of 1969, District Munsifs Court, Tindivanam. Admittedly, the respondent herein, who was the plaintiff in O.S. No. 652 of 1969, had not parted with any of their rights or interests in favour of the petitioner herein in the course of O.S. No. 652 of 1969. The Pctitioner also cannot claim to be a representative of Subramania Chettiar the defendant in O.S. No. 652 of 1969, by reason of this Court auction purchase in execution of the decree in O.S. No. 231 of 1969, District Munsif's Court, Tindivanam. A reading of Section 47(1), C.P.C. shows that in order to enable an application under that section to be maintained and enquired into, a question should arise between the parties to the suit in which the decree was passed for their representatives. Earlier, it had been pointed out how ihe petitioner cannot be regarded as a party to O.S. No. 652 of 1969. The petitioner cannot also be regarded as the representative of Subramania Chettiar in O.S. No. 652 of 1969, for, he had not acquired the interests of Subramania Chettiar. either from him or by a court sale in execution of the decree against him in O.S. No. 652 of 1969, District Munsif's Court, Tindivanam. In as much as the petitioner herein had not acquired any right or interest from Subramania Chettiar, the defendant in O.S. No. 652 of 1969, who was a party to that suit, in the course of the proceedings in that suit, the petitioner cannot be regarded as the representative of Subramania Chettiar in O.S. No. 652 of 1969 as to enable him to maintain the application under Section 47(1), C.P.C. Thus, looked, at from any point of view, the petitioner cannot maintain the application under Section 47, C.P.C. either as a party to the suit in the light of Explanation II(a) to Section 47, C.P.C. or even as a representative within the meaning of Section 47(1), C.P.C. It would be appropriate at this stage to refer to the two decisions relied on by learned Counsel for the petitioner, viz., Manicka Chettiar v. Rajambal Ammal (1955) 2 M.L.J. 357 and Tirugnana Sambanda Mudaliar v. Meenakshi . In the first decision, one Subramania Mudaliar having filed a suit for dissolution of partnership and for accounts, applied for an order of attachment before judgments of the properties belonging to the second defendant and an attachment order was passed and was also made absolute. A preliminary decree for dissolution was passed. The suit as against the defendant where properties were attached before judgment was dismissed, but, on appeal, the suit was remanded as against him. However, during the interval, the second defendant sold the properties to the first defendant and ultimately, a final decree was passed under which the second defendant-vendor was also made liable and an application for execution by the decree holder was resisted by the first defendant with a claim petition on the strength of the purchase made during the pendency of the suit. That was allowed and thereafter a suit was filed to set aside that order. An objection was raised that the suit was not maintainable because the remedy was by way of an appeal under Section 47, C.P.C. Ss the first defendant should be regarded as the representative of the judgment-debtor, having purchased the property of the judgment-debtor pending the attachment and the suit. The suit was decreed by the trial court and it was also affirmed by the lower appellate Court. However, the Division Bench pointed out that by virtue of the purchase from the Judgment-debtor, the first defendant must be said to the representative of the judgment debtor and the matter would, therefore, fall within Section 47, C.P.C. It is thus seen that the first defendant had purchased the property from the second defendant during the pendency of the suit O.S. No.83 of 1940. In ofherwords, defendents 1 and 2 were both already parties to the suit and by the transaction of sale during the pendency of the suit, the first defendant had also become a representative of the interest of the second defendant. Earlier, it had been pointed out that the petitioner had not in any manner acquired the interest of Subramania Chettiar in the course of the proceedings in O.S. No.652 of 1969 and he cannot, therefore, be permitted to claim that he is a representative of Subramania Chettiar in so far as O.S. No. 652 of 1969 is concerned. The first decision relied on by learned Counsel for the petitioner cannot, therefore, have any application. In so far as the second decision relied on by learned Counsel for the petitioner is concerned, it is seen that in execution of one and the same decree in O.S. No.5 of 1945 for maintenance, certain properties were fist brought to sale and sold and in respect of the arrears of maintenance which fell due subsequently the decree-holder brought the some property to court-sale, purchased it and when she went to take delivery, obstruction was offered by the purchaser in the prior court sale and on the dismissal of her purchaser in the prior court sale and on the dismissal of her application for the removal of obstruction, she filed a suit for a declaration of her title to the property and for recovery of possesion. An objection was raised that the dispute related to a matter pertaining to petition falling under Section 47 C.P.C. and, therefore, the suit was not competent. This objection was upheld by the. trial Court, but the lower appellate court, however, granted a decree declaring the title to the property in favour of the plaintiff and in second appeal, it was held that the decree-holder despite her purchase in the second court auction sale, continued to be a dence holder and proceedings at her instance for delivery of possession and obstructed to by those third partyaction purchaser, would fall within Section 47, C.P.C. and the suit was, therefore not maintainable. This decision cannot, in my view, be of any assistance to the petitioner, for, the same decree in O.S. No.8 of 1945 has been executed for recovery of arrears in maintenance twice over and on one occasion, the property was sold and purchased by a stranger and on the second occasion, by the decree-holder herself. The obstruction was offered by the stranger-purchaser when the decree-holder auction purchaser sought delivery of possession and it was in that context, it was held that the matter would be governed by Section 47, C.P.C. and a suit was incompetent. In the case on hand, there were two different decrees in two suits which were executed separately and the property was also purchased by different persons. But in the decision relied on by learned Counsel for the petitioner, two persons had purchased the property on different occasions, but in execution of the same decree and it was under these circumstances, Section 47, C.P.C. was held to apply. That is not the case here.
7. In view of the foregoing discussion, the application filed by the petitioner invoking Section 47, C.P.C. is not maintainable. It would, therefore, be unnecessary to go into the other matters raised by the petitioner in his application under Section 47, C.P.C. The civil revision petition is, therefore, dismissed with costs.