Madras High Court
P.Gurusamy vs Ramasubramaniam on 8 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)NO.423 OF 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 26.09.2024
PRONOUNCED ON : 08.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.423 of 2018
P.Gurusamy ... Appellant / 1st Respondent/
Plaintiff
Vs.
1. Ramasubramaniam
2. Rajeswari ... Respondents 1 & 2 /
Appellants / Defendants 12, 17 & 18
3. Sarangapani
4. Narayanasami
5. Ramachandran
6. Srinivasan
7. Venkatesan
8. Jeyalakshmi
9. Sundararajan
10.Krishnakumar
11.Baskaran
12.Sivakumar
13.Mohammed Ibrahim
14.Sankaran
15.Perumalraj ... Respondents 3 to 15 /
Respondents /
Defendant 2 to 10 & 13 to 16
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2 S.A.(MD)NO.423 OF 2018
Prayer: Second Appeal filed under Section 100 CPC, to set aside the
judgment and decree dated 20.06.2018 passed by the learned Principal
District and Sessions Judge, Virudhunagar District @ Srivilliputhur in
A.S.No.18 of 2014, reversing the judgment and decree dated
30.04.2014 passed in O.S.No.14 of 2014 by the learned Sub Judge,
Sivakasi.
For Appellant : Mr.S.Ramesh
For R-1 : Mr.M.Vallinayagam, Senior counsel,
for Mr.Gangaiamaran.
***
JUDGMENT
The plaintiff in O.S No.14 of 2014 on the file of the Sub Court, Sivakasi is the appellant herein. The suit was filed for the relief of declaration and recovery of possession.
2.The suit property originally belonged to defendants 1 to 10. They had mortgaged the property in favour of one Kutralinga Moopanar vide registered mortgage deeds dated 12.03.1960 and 28.11.1961. The mortgagee dues were not cleared. The mortgagee had passed away and his legal heirs filed O.S No.52 of 1973 for recovery of the amount due under the mortgage deeds. Preliminary decree was passed on 11.12.1973 and final decree was passed on 07.09.1974. Up to this 2/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 3 S.A.(MD)NO.423 OF 2018 point, there is no controversy. The plaintiff would claim that final decree was assigned in favour of one N.M.Narayana Moopanar who filed E.P No.12 of 1983 in which the suit property was brought to sale on 24.08.1984. The plaintiff was the auction-purchaser. The sale was confirmed on 16.07.1996. Madasamy Thevar, the 11th defendant in the present suit, had purchased the suit property from D1 to D10 in the year 1981. Since he declined to hand over possession, the auction- purchaser had to file O.S No.14 of 2014 for declaration and recovery of possession.
3.The stand of Madasamy Thevar (D11) was that the decree holders in O.S No.52 of 1973 had assigned the decree in favour of one Gurupackiyam on 18.01.1979 who filed E.P No.4 of 1981. In the meanwhile, he had purchased the suit property vide sale deeds dated 13.04.1981 and 18.05.1981. He paid the decreetal amount of Rs. 51,826/- to the second defendant who in turn paid the same to Gurupackiyam. Since the decree was satisfied, memo was filed on 01.03.1983 to that effect and E.P No.4 of 1981 was closed. N.M.Narayana Moopanar had no right to bring the suit property to sale by filing E.P No.12 of 1983. The right to apply for final decree was given only to the plaintiffs (legal heirs of Kutralinga Moopanar, the first mortgagee) in O.S No.52 of 1973. It is true that one Lakhsmanan 3/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 4 S.A.(MD)NO.423 OF 2018 Chettiar in whose favour a second mortgage was created was impleaded as the 11th defendant in O.S No.52 of 1973. But he had no right to assign the decree in favour of Narayanan Moopanar. The auction that took place pursuant to the steps taken by Narayanan Moopanar is void. Narayanan Moopanar had obtained amendment of the final decree by filing I.A No.128 of 1982. But in the said application, Madasamy Thevar was not impleaded. Madasamy Thevar (D11) contended that the auction-purchaser's remedy stood barred by limitation.
4.Based on the rival pleadings, the trial court framed the necessary issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A8. By the time when the matter was taken up for trial, Madasamy Thevar passed away and his legal heirs were brought on record. His son Ramasubramaniam was examined as D.W.1. Ex.B1 to Ex.B10 were marked. After consideration of the evidence on record, the trial Court by judgment and decree dated 30.04.2014, decreed the suit as prayed for. Aggrieved by the same, the legal heirs of Madasamy Thevar filed A.S.No.18 of 2014 on the file of Principal District and Sessions Judge, Virudhunagar District at Srivilliputhur. By the judgment and decree dated 20.06.2018, the decision of the trial Court was reversed and the suit came to be dismissed and the appeal was 4/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 5 S.A.(MD)NO.423 OF 2018 allowed. Aggrieved by the same, the plaintiff has filed this second appeal. The second appeal was admitted on 08.03.2021 and the following substantial questions of law were formulated:-
“i) Whether the first appellate Judge committed a serious error of law regarding presumption in favour of the plaintiff since execution petition filed by the puisne mortgagee in E.P.No.12 of 1983 would be taken on record only in the event of an executable decree in favour of decree holder and observed that plaintiff failed to prove decree in favour of puisne mortgagee and therefore the sale conducted in favour of the plaintiff do not confer title?
ii) Whether a presumption in law lies in favour of the auction purchaser in a sale conducted in E.P.No.12 of 1983 filed by the assignee of the puisne mortgagee with regard to the existence of an executable decree in favour of puisne mortgagee in a suit filed by prior mortgagee, whose decree has been settled?
iii) Whether the first appellate Judge committed a serious error of law in failing to see that Ex.B1 namely as assignment of decree in O.S.No.52 of 1973 by puisne mortgagee in favour of the execution petitioner stood proved and consequently the auction sale validated?”
5.Both sides advanced arguments and also filed written notes. I carefully considered the rival contentions and went through the evidence on record.
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6.The plaintiff had purchased the suit property in the auction- sale in the execution proceedings (EP No.12 of 1983) instituted by N.M.Narayana Moopanar. Narayana Moopanar claimed right on the basis of the made over document (Ex.B1/Ex.B5) executed by Lakhsmana Chettiar (D11 in O.S No.52 of 1973). Lakshmana Chettiar had been impleaded in his capacity as puisne mortgagee. The argument of the contesting defendants herein was that the preliminary decree in O.S No.52 of 1973 did not declare the right of Lakshmana Chettiar and that therefore, he could not have applied for passing any final decree which right was exclusively given only to the plaintiffs therein. Therefore, the made over document said to have been executed by Lakshmana Chettiar (Ex.B1/B5) could not have conferred any right on N.M.Narayana Moopanar to file execution proceedings to enforce the final decree passed in O.S No.52 of 1973.
7.The trial Court rejected this argument on the ground that the Executing Court would not have taken E.P.No.12 of 1983 on file if N.M.Narayana Moopanar did not have any executable decree in his favor. The trial Court came to this inferential conclusion after a consideration of the overall circumstances including the recitals found in Ex.B1 (Made over document). The first appellate Court interfered with the decision of the trial Court primarily on the ground that since the 6/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 7 S.A.(MD)NO.423 OF 2018 preliminary decree as well as the final decree were not marked, the trial Court could not have resorted to conjectural inferences in favour of the plaintiff by solely relying on Ex.B1.
8.In fact, all the three substantial questions of law framed while admitting the second appeal hover around the soundness of the aforesaid reasoning. But all of them have become academic on account of the petition filed by the appellant under Order 41 Rule 27 CPC. The appellant has filed C.M.P.(MD)No.12194 of 2018 to mark the preliminary decree dated 11.12.1973 in O.S.No.52 of 1973 on the file of the Sub Court, Ramanathapuram at Madurai and the amended final decree dated 07.09.1974 on the file of the Sub Court, Ramanathapuram at Madurai. This application was heard along with the main appeal. The Hon'ble Supreme Court in the decision reported in Wadi v. Amilal (2015) 1 SCC 677 held as follows :
“4....On the question of admission of that document by the appellate court, it would be necessary to notice the relevant provision of Order 41 Rule 27 of the Code of Civil Procedure:
“27. Production of additional evidence in appellate court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if—
(a)-(aa) *** 7/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 8 S.A.(MD)NO.423 OF 2018
(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined.”
5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course.
Invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellate court to resort to it when on a consideration of the material or record it feels that 8/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 9 S.A.(MD)NO.423 OF 2018 admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.“
9.The primary question that was before the courts below was whether the rights of the puisne mortgagee were also declared in the preliminary decree/final decree and whether his assignee could file the execution petition. The plaintiff failed to mark the preliminary decree and the final decree made in O.S No.52 of 1973. This omission did not discourage the trial court in arriving at certain findings. But the appellate court was of the view that this failure was fatal. Now, the said evidence has been made available before me. By considering the same, I would certainly be able to render a satisfactory judgment. Without their aid, that may not be possible. Admitting the additional evidence alone would serve the ends of justice. This would be “substantial cause” within the meaning of Order 41 Rule 27 CPC. The appellant had also given convincing reasons as to why the additional evidence could not be brought before the trial court. No real prejudice would be caused to the contesting respondents by admitting the additional evidence. CMP(MD)No. 12194 of 2018 is allowed. Normally, when a petition under Order 41 Rule 27 CPC is allowed, certain procedures will have to be adopted. They can be dispensed with in the present case because the additional evidence now admitted as Exs.A9 and A10 are only certified copies of the preliminary decree and final decree made in O.S No.52 of 1973.
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10.Now let me examine the contents of the preliminary decree and the final decree. The preliminary decree contains the following clause:-
“4) And it is hereby further ordered and decreed that in default of payment as aforesaid of the amount due to the plaintiffs, the plaintiffs shall be at liberty to apply to the court for a final decree.
i) that the mortgaged property or a sufficient part thereof shall be sold and that for purposes of such sale the plaintiffs shall produce before the Court or such officer as it appoints, all documents, in his possession or power relating to the mortgaged property and ;
ii) that the money realized by such sale shall be paid into Court and be duly applied (after deduction these from of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may have been passed in this suit and in payment of the amount which the court may adjudged due to the plaintiff in respect of such costs of tis suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of order XXXIV of the First Schedule to the code of Civil Procedure, 1908 that the balance, if any, shall be applied in payment of the amount due to defendant 10/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 11 S.A.(MD)NO.423 OF 2018 No.11; and that if any balance be left it shall be paid to the defendant Nos.1 to 10 or other persons entitled to receive the same ; and
5) And it is hereby further ordered and decreed : -
a) that the defendant No.11 pays into court to the credit of this suit the amount adjudged due to the plaintiff but defendant Nos.1 to 10 makes default in the payment of said amount, defendants No.11 shall be at liberty to apply to the court to keep the plaintiff's mortgage alive for his benefit and to apply for a Final Decree (in the manner as the plaintiff might have done under clause 4 above).
i) that the mortgage property or sufficient part thereof be sold and that for the purpose of such sale defendant No.11 shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.” Even though the preliminary decree clearly declared the rights of the puisne mortgagee, the final decree was silent on this aspect. Therefore, at the instance of the assignee of the puisne mortgagee, the final decree was amended vide order dated 16.06.1982 in I.A No.128 of 1982. Post amendment, the final decree dated 07.09.1974 read as follows : -11/23
https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 12 S.A.(MD)NO.423 OF 2018 “ It is hereby declared that the amount due to the 11th defendant on the mortgage mentioned in his written statement calculated upto this 11th day of December, 1973 is the sum of Rs.30,000/- for principal and the sum of Rs.27,770/- for interest on the said principal making in all a sum of Rs. 57,770/-
...
3. ...
b) that defendants 1 to 10 do pay into court on or before the 11th day of June, 1974 or any later date upto which time for payment has been extended by the court the said sum of Rs.57,770/- due to the defendant No.11 with future interest on Rs.30,000/- at 6% per annum from this date till the date of realisation subject to payment of court fees at the time of execution.”
11.The question as to whether the assignee of the puisne mortgagee, whose rights have also been declared in the preliminary decree as well as in the final decree, can file an execution petition need not detain me at this point of time. The fact remains that N.M.Narayana Moopanar filed a petition in I.A.No.128 of 1982 for amending the final decree and that it was allowed. The fact remains that he filed E.P.No.12 of 1983 and it was taken on file. After he passed away, his legal heirs came on record. The property was brought to public auction and the appellant herein had purchased the property on 24.08.1984 for a sum of 12/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 13 S.A.(MD)NO.423 OF 2018 Rs.90,100/-. Madasamy Thevar, 11th defendant in the present suit, filed E.A.No.178 of 1984 for setting aside the sale. The said EA was pending for a very long time and adjourned from time to time. It was eventually dismissed for default on 21.06.1996. A petition for restoration was filed and it was also dismissed for default. The auction-sale in favour of the appellant was confirmed on 16.07.1996 and the sale certificate was issued thereafter. The learned trial Judge took note of the docket entries made in E.P No.12 of 1983 and came to the conclusion that the plaintiff, as the auction purchaser at court sale in the execution proceedings, obtained title over the suit property. The elaborate and sound reasoning of the trial Judge was dislodged on the sole ground that the preliminary decree and final decree made in O.S.No.52 of 1973 had not been brought on record.
12. In view of the allowing of the petition under Order 41. Rule 27 CPC, all the substantial questions of law framed in this second appeal have become academic. But this second appeal cannot be disposed of on this note. The following additional substantial question of law was framed on 04.09.2024 :
“Whether the appellant's suit for declaration of title and recovery of possession is barred under Section 47 CPC and whether the only course open to him was to file a petition for delivery of possession under Order 21 Rule 95 CPC?” 13/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 14 S.A.(MD)NO.423 OF 2018 The learned counsel on either side advanced their arguments on this additional substantial question of law.
13.The learned counsel appearing for the appellant relied on the following decisions reported in support of his contention that the appellant's suit was very much maintainable:-
“i) (1996) 5 SCC 48 (Pattam Khader Khan V. Pattam Sardar Khan and Another)
ii) (2006) 3 SCC 49 (Balakrishnan V. Malaiyandi Konar)
iii) 2003 (3) CTC 217 (The Nazerth Co-operative Building Society Ltd., V. Kanagaraj)
iv) 2016 SCC OnLine Mad 20422 (Vendanthipillai V. C.Kaja Mohideen
v) (2018) 7 SCC 278 (Siddagangaiah V. N.K.Giriraja Shetty)”
14.Per contra, the learned Senior Counsel appearing for the respondents heavily relied on the decision of the Hon'ble Supreme Court reported in (2005) 9 SCC 354 (K.R.Lakshminarayana Rao V. New Premier Chemical Industries) and the recent decision of a learned Judge of this Court reported in (2024) 4 MLJ 217 (N.M.Subramaniam V. Unnammal) and submitted that this appeal deserves to be dismissed.
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15.The Hon'ble Supreme Court in (2005) 9 SCC 354 (K.R.Lakshminarayana Rao V. New Premier Chemical Industries) had held that the steps for obtaining delivery of property in occupancy of the judgment-debtor is required to be taken by the auction-purchaser in terms of Order 21 Rule 95 CPC and, thus, a separate suit to enforce such a right would, therefore, be not maintainable. This decision was followed by the Hon'ble Ms.Justice P.T.Asha in N.M.Subramaniam V. Unnammal [(2024) 4 MLJ 217]. After elaborately discussing all the earlier decisions including Pattam Khader Khan V. Pattam Sardar Khan(1996) 2 MLJ 142, Balakrishnan V. Malaiyandi Konar (2006) 2 MLJ 289 rendered by the Hon'ble Supreme Court, the Hon'ble Judge held that in Pattam Khader Khan case and Malaiyandi Konar case, the issue as to the maintainability of an independent suit did not directly arise for consideration whereas in K.R.Lakshminarayana Rao case, it was the direct issue under consideration. Hence, in this view of the matter, the learned Judge held as follows:-
“28. ...
(c) Section 47 Civil Procedure Code creates an express bar for filing a separate suit to determine the question between the parties to the suit relating to its execution, discharge or satisfaction of the decree. As per Explanation II(a) the auction purchaser of property is a party to the suit. Explanation II(b) explains that questions relating to delivery of possession of the property to the purchaser or his representative is also 15/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 16 S.A.(MD)NO.423 OF 2018 considered a question relating to the discharge, execution & satisfaction of the decree. K.R.Lakshminarayana Rao V. New Premier Chemical Industries.(supra)”
16.I can simply adopt the same approach and dismiss this second appeal on the ground that the suit itself was not maintainable. I am not able to do so because another learned Judge of this court in the decision reported in 2016 SCC OnLine Mad 20422 Vendanthipillai V. C.Kaja Mohideen had held that if an auction purchaser has not filed an application for delivery under Order 21 Rule 95 within a year as contemplated under Article 134 of Limitation Act, then the auction purchaser can very well file a regular suit for recovery of suit for possession within 12 years. Justice Ms.R.Mala also considered the very same line of precedents and rejected the arugment that the suit is barred under Section 47 CPC. Normally, when one is faced with such conflicting opinions, the proper course would be to place the papers before the Hon'ble Chief Justice for constituting a Larger Bench to resolve the issue. I, however, decline to do so for the simple reason that the Larger Bench would face the very same dilemma and predicament which I am now facing. This is because conflicting views had been taken by the Hon'ble Supreme Court.
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17.In A.P.Electrical Equipment Corporation vs. Tahsildar (2025 SCC OnLine SC 447), it was cautioned that if two decisions of the Supreme Court appear inconsistent with each other, the High Courts are not to follow one and overlook the other, but should try to reconcile and respect them both and follow that decision whose facts appear more in accord with those of the case at hand.
18.Judicial discipline demands that I follow this mandate. But how am I to reconcile two decisions which lay down diametrically opposite propositions. I respect both the decisions but it is beyond my means to reconcile irreconcilable decisions. Let me start with Pattam Khader Khan. It was held therein that on the failure of the party to avail of the quick remedy prescribed under Order 21 Rule 95 CPC r/w. Article 134 of the Limitation Act, then the law relegates him to the remedy of a suit for possession in a regular way. This position was reiterated in Malaiyandi Konar case. The proposition laid down in K.R.Lakshminarayana Rao is that a regular suit is not maintainable. Robert Frost sang :
“Two roads diverged in a yellow wood, And sorry I could not travel both”.
One has to choose the path to be trodden. Parallel travel in both is possible only in quantum world and not in physical reality.17/23
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19.In Sandeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623, it was held that when the High Court encounters two or more mutually irreconcilable decisions of the Supreme Court, the inviolable course is to apply the earliest view. In U.T of Ladakh vs. Jammu and Kashmir National Conference (2023 SCC OnLine SC 1140), it was held that when the High Court is faced with conflicting judgments by benches of equal strength of the Supreme Court, it is the earlier one which is to be followed by the High Court. Reliance was placed on the Five Judge Bench decision in National Insurance Company Limited vs. Pranay Sethi (2017) 16 SCC 680.
20.It is ironical that there are conflicting precedents as to the course to be adopted by the High Court when faced with conflicting precedents.
21.Some Judges choose the convenient mode of not referring to the inconvenient precedents. To give full marks to Hon'ble Ms.Justice P.T.Asha, such an approach was not adopted. The bull was taken by the horns. All the three decisions of the Hon'ble Supreme Court were discussed at length. Finally, the learned Judge as already mentioned chose to follow the ratio in K.R.Lakshminarayana Rao case and declined to follow the obiter in Pattam Khader Khan and Malaiyandi Konar.
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22.I am not able to brush aside the opinion expressed in Pattam Khader Khan case and Malaiyandi Konar case as mere obiter. The Three Judges Bench of the Hon'ble Supreme Court in Municipal Committee, Amritsar V. Hazara Singh (1975) 1 SCC 794 had held that judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. This position was reiterated in the recent decision reported in 2019 SCC OnLine 851 (Peerless General Finance and Investment Co. Ltd., V. Commissioner of Income Tax) wherein it was held therein that a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court.
23.A stray observation or even a mere remark may not be binding on the High Court. But where a proposition of law has been categorically enunciated by the Supreme Court, it cannot be ignored. It is the law of the land under Article 141 of the Constitution of India and would therefore be binding on the High Courts. If in K.R.Lakshminarayana Rao case, Pattam Khader Khan case had been dealt with, it would have been a different matter altogether. In that event, I would have been obliged to follow K.R.Lakshminarayana Rao. K.R.Lakshminarayana Rao stands sandwiched between the earlier 19/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 08:33:27 pm ) 20 S.A.(MD)NO.423 OF 2018 and later decision of the Hon'ble Supreme Court. All the three Benches are of the same strength (two Judges). In these circumstances, I am obliged to adopt the approach indicated in Pranay Sethi.
24.A learned Judge of the Bombay High Court (the Hon'ble Mr.Justice Abhay S.Oka, as His Lordship then was) in the decision reported in 2007 SCC OnLine Bom 852 (Waman Bhila Patil v. Jagannath Tarachand Kasliwal) had held as follows:-
“8.It will be necessary to refer to an old decision of Division Bench of this Court in the case of Balvant Santaram v. Babaji Sambhapa, The Indian Law Reporter Vol. VIII 602. The Division Bench considered the provisions of section 328 of the Code of Civil Procedure of the year 1882 which is on par with Rule 95 of Order XXI of the said Code of 1908. It was held that failure on the part of the auction purchaser to avail himself of the remedy under section 328 of the said Code will not prevent him from proceeding against the defendant by a regular suit'' After considering the decisions of the Apex Court in Pattam Khader Khan and Malaiyandi Konar, it was held therein that the Appellate Court was right in holding that the suit for possession by auction purchaser was maintainable.20/23
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25.The High Court is not only a court of law but also equity. Though moral considerations should not enter one's judicial decision making process, where the scales are even, they can very well tilt on one side. The contesting respondents herein are the legal heirs of Madasamy Thevar. He purchased the suit property knowing fully well that it is subject to mortgages in favour of Kutralinga Moopanar and Lakshmana Chettiar. This aspect was conceded by D.W.1 during the course of his cross examination. For reasons that are not quite clear, Madasamy Thevar settled the dues payable in respect of the first mortgage alone. The second mortgage in favour of Lakshmana Chettiar was left uncleared. The appellant had purchased the property at a Court auction sale. He was a bonafide purchaser. Madasamy Thevar filed a petition to set aside the sale in favour of the appellant. Though the application was dragged on for a full 12 years, it was allowed to be dismissed for default. Thus, equities are strongly in favour of the appellant. It is this equitable consideration that leads me to prefer Pattam Khader Khan and Malaiyandi Konar over K.R.Lakshminarayana Rao. I have already set out my reasons as to why I am refraining from making a reference to a larger bench. The additional substantial question of law is answered in favour of the appellant.
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26.The auction-sale in favour of the appellant was confirmed on 16.07.1996. The suit was filed in the year 2006 itself (ie.) within ten years. The suit is not barred by limitation. The impugned judgment and decree passed by the first appellate court are set aside. The decision of the trial court is restored. This second appeal is allowed. No costs.
08.04.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Skm
To:
1. The Principal District and Sessions Judge, Virudhunagar District @ Srivilliputhur.
2. The Sub Judge, Sivakasi.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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