Karnataka High Court
D. Rangappa vs G. Mudlappa And Ors. on 3 August, 2005
Equivalent citations: II(2006)BC238, ILR2005KAR4759, AIR 2005 (NOC) 541 (KAR), 2005 A I H C 4144, (2005) 4 RECCIVR 461, (2006) 2 BANKCAS 238, (2005) 35 ALLINDCAS 833 (KAR), (2006) 1 CIVLJ 736, (2006) 2 CURCC 250, 2005 AIR - KANT. H. C. R. 2292, (2006) 1 ICC 224 (2005) 4 KCCR 2361, (2005) 4 KCCR 2361
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT V.G. Sabhahit, J.
1. This appeal by the Plaintiff is directed against the judgment and decree passed by the Court of the Civil Judge (Sr. Dn.) Madhugiri in R.A. No. 51/2002, dated 11.04.2003, allowing the appeal and setting aside the judgment and decree passed by the Court of the Civil Judge (Jr. Dn.) Madhugiri, in O.S. No. 10/1998 dated 31.10.2002 and consequently, dismissing the suit of the plaintiff.
The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Trial Court are as follows:
2. The plaintiff filed the suit, O.S. No. 10/1998, seeking for delivery of possession of the suit schedule property from the defendants to him and for award of costs averring that the first defendant was the owner of the suit schedule property and he mortgaged the same in favour of the State Bank of Mysore, Madhugiri, for raising loan. The suit, O.S. No. 9/78, was filed by the said Bank for recovery of the loan amount. The said suit was decreed for recovery of the decreetal amount and thereafter, the said decree was sued out in Execution petition No. 94/1989 and the suit schedule property was brought to sale and an auction was held on 17.01.1991. The plaintiff participated in the said sale and he was the highest bidder and the sale of the suit schedule property was confirmed in his favour on 01.09.1993. The defendants filed Miscellaneous Appeal No. 65/1993 challenging the confirmation of sale and the said appeal was dismissed on 08.08.1994. It is further averred that the sale certificate was also obtained by the plaintiff on 17.02.1995 and in order to take delivery of possession of the suit schedule property, the plaintiff approached and requested the defendants to hand over possession of the suit schedule property, but, they refused to do so and wherefore, the suit.
3. The suit was resisted by the defendants. Defendants 1 to 5 filed the written statement averring that the various allegations made in para 2 of the plaint are all correct, but, the proceedings in Execution petition No. 94/1989 are bad at its inception and the allegations in para 3 of the plaint are all false. It is further averred that the cause of action stated in para 4 of the plaint was not correct and the plaintiff started deliberate proceedings in Misc. No. 73/1995, which was dismissed on 29.10.1997 and the suit was barred by time and not maintainable and sought for dismissal of the suit by awarding costs.
4. Defendants 6 and 7 filed the written statement averring that the fact of raising of the loan by the first defendant from the State Bank of Mysore, Madhugiri Branch, mortgaging the suit schedule property, is not within the knowledge of either the defendants 6 and 7 or their father, late Chikkegowda. It is averred that the first defendant had taken a loan from the father of defendant 6 and 7-Chikkegowda for his family necessity and in order to discharge the said loan, he sold the suit schedule property in favour of Chikkegowda, the father of the defendants 6 and 7; the decree passed in O.S. No. 9/78 against the first defendant and the proceedings in Execution Petition No. 94/1989 are not binding on defendants 6 and 7 and the defendants 6 and 7 or their father, late Chikkegowda, had no knowledge of the said proceedings and they were not parties to the same and the sale proceedings and confirmation of sale on 01.09.1993 are all bad in law and the same are not binding on the defendants 6 and 7 and will not affect their rights. It is averred that the plaintiff will not get any right or title over the suit schedule property under the said sale certificate and the sale and the subsequent sale certificate, as pleaded by the plaintiff is not in accordance with the provisions of law and the entire proceedings are vitiated under law. It is further averred that: defendants 1 to 5 have colluded together with the plaintiff and have played fraud on the defendants 6 and 7 and their father; the first defendant had not at all disclosed that he had raised any loan by mortgaging the suit schedule property at the time of executing the sale deed and defendants 6 and 7 were not at all aware of the proceedings till they received summons from the Court in the present suit and after verifying the documents and proceedings, they came to know about the illegal decree and subsequent proceedings. It is also averred that on verification of the records, defendants 6 and 7 learnt that the plaintiff had filed Misc. petition No. 73/1995 for recovery of possession from the defendants 1 to 6 and even the said Miscellaneous petition filed was barred by limitation and later on, the plaintiff, himself got dismissed the petition by filing a memo on 29.10.1998 and wherefore, the plaintiff is not entitled to the reliefs sought for in the suit and the suit for mere possession without seeking proper relief of declaration is not maintainable in law and the plaintiff is not the owner of the suit schedule property.
5. The Trial Court framed appropriate issues and additional issue. On behalf of the plaintiff, the plaintiff examined himself as PW1 and got marked Exs. P1 to P21. On behalf of the defendants, defendant No. 6 was examined as DW1 and the defendants also examined DWs 2 to 4 and got marked Exs. D1 to D15. The Trial Court after considering the contentions of the learned Counsel appearing for the parties and the material on record, answered the issues and additional issue in favour of the plaintiff and decreed the suit of the plaintiff by judgment dated 31.01.2002. The Trial Court, in view of the decision of the Hon'ble Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and Anr., and also the decision of this Court in Govindappa v. Premanand, wherein it is held that an auction purchaser can file an application under Order 21 Rule 95 CPC., or file a suit for possession on the basis of the sale certificate, held that the suit for possession was maintainable and the plaintiff was entitled to possession of the suit schedule property as sought for in the suit. That being aggrieved by the said judgment and decree passed by the trial Court dated 31.01.2002, defendants 6 and 7 preferred R.A. No. 51/2002 on the file of the Civil Judge (Sr. Dn.), Madhugiri, and the first appellate Court by its judgment dated 11.04.2003, held that the finding of the Trial Court that the plaintiff can avail the remedy under Order 21 Rule 95 CPC., or file a suit, was erroneous, in view of the decision of the Hon'ble Supreme Court in the case of Harnandrai Badridas v. Debidutt Bhagwati Prasad and Ors., wherein a Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court has held that in view of the amendment of the provisions of Section 47 of the Civil Procedure Code, wherein the auction purchaser is deemed to be a party to the proceeding, all questions relating to 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 Section 47 CPC., and the same have to be decided under Section 47 CPC., and not by a separate suit. The first appellate Court held that the said decision in Harnandrai's case rendered by a Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court was a binding precedent as the decision of the Hon'ble Surpreme Court relied upon by the Trial Court in Pattam Khader Khan's case (Supra)was rendered by Bench comprising of two Hon'ble Judges of the Hon'ble Supreme Court and accordingly, followed the said judgment and held that the suit of the plaintiff was not maintainable and reversed the judgment and decree passed by the Trial Court and dismissed the suit of the plaintiff by its judgment dated 11.04.2003. Being aggrieved by the said judgment and decree passed by the first appellate Court dated 11.04.2003, the plaintiff preferred this appeal under Section 100 CPC and the appeal was admitted on 25.06.2004 for consideration of the following substantial questions of law:
1. Whether the first appellate Court is right in reversing the judgment and decree of the Trial Court because the plaintiff has failed to avail the remedy under Article 134 of the Limitation Act of 1963 read with Order 21 Rule 95 CPC., and on account of that it is a bar to invoke the right to institute suit under Article 65 of the Limitation Act for possession on title and whether the findings are in conformity with the decision reported in 1996(5) SCC 548
2. Whether the conclusion that suit is not maintainable by applying the ratio of the decision in AIR 1973 SC 2373 is correct?
6. I have heard the learned Counsel appearing for the parties on the above said substantial questions of law:
7. Learned Counsel appearing for the Appellant-plaintiff submitted that the first appellant Court was not justified in holding that the suit was not maintainable. Learned Counsel submitted that an auction purchaser cannot be placed in a disadvantageous position than that of an ordinary purchaser, who can approach the Civil Court for possession of the property and the remedy provided under Order 21 Rule 95 CPC., is a speedy remedy made available to the auction purchaser and the same would not debar the right of the auction purchaser to file the suit for possession by resorting to the ordinary remedy. Learned Counsel submitted that the plaintiff had made an application before the Court under Order 21 Rule 95 CPC., in Misc. Application No. 73/ 1995 and the same was got dismissed on 29.10.1997 and there was no decision on merits and therefore, the plaintiff cannot be debarred from approaching the Court for possession of the suit schedule property on the basis of the sale certificate. Learned Counsel further submitted that in view of the fact that the conditions requisite for seeking possession under Order 21 Rule 95 CPC., were not available to the plaintiff as Defendants 6 and 7 are the purchasers of the suit property from judgment debtors. Defendants 1 to 5, and they would not fall within the ambit of persons from whom, possession can be taken under Order 21 Rule 95 CPC. Learned Counsel further submitted that Article 65 Clause (c) of the Limitation Act, 1963, specifically provides that where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession and the period of limitation prescribed under Article 65 of the Limitation Act is 12 years and time from which period beings to run is specified as when the possession of the defendant becomes adverse to the plaintiff. Article 134 of the Limitation Act only deals with the application to be filed under Order 21 Rule 95 CPC., for delivery of possession by a purchaser of immovable property at a sale in execution of a decree and the period of limitation is prescribed as one year from the date when the sale becomes absolute and wherefore, the said Article itself contemplates that the auction purchaser can also file a suit for possession on the basis of title under Article 65 of the Limitation Act and the period of limitation is 12 years when the possession of the defendant becomes adverse to the plaintiff.
8. On the other hand, the learned Counsel appearing for the respondents - defendants 6 and 7 submitted that in view of the settled law of precedent, the judgment rendered by a larger bench of the Hon'ble Supreme Court would be binding on all the Courts, in view of Article 141 of the Constitution of India and the Trial Court had relied upon the decision rendered by the Bench comprising of two Hon'ble Judges of the Hon'ble Supreme Court and the decision of this Court and the first appellate Court has rightly held that in view of the judgment rendered by the bench comprising three Hon'ble Judges of the Hon'ble Supreme Court in Harnandrai Badridas's case supra the trial Court was not justified in relying upon the decision of the Hon'ble Supreme Court in Pattam Khader Khan's case supra Learned Counsel further submitted that admittedly the plaintiff had filed an application under Order 21 Rule 95 CPC., seeking for possession and the said Misc. Application No. 73/1995 was dismissed on the basis of a memo filed by the plaintiff on 29.10.1997 and wherefore, when the application filed under Order 21 Rule 95 CPC., is dismissed, the suit is not maintainable. Learned Counsel further submitted that in view of the authority to pronouncement of the Hon'ble Supreme Court in Harnandrai Badridas's case supra and in view of the explanation to Section 47 of the Code of Civil Procedure, wherein the auction purchaser is deemed to be a party to the suit in which the decree is passed and the questions relating to 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 Section 47 and no separate suit lies in view of Section 47(1) of the Code of Civil Procedure, the first appellate Court was justified in dismissing the suit of the plaintiff. He has also relied upon the decision of this Court in the case of Gat Nagamma v. Hardar Bahubali, wherein this Court following the decision of the Hon'ble Supreme Court in Harnandrai's case has held that the delivery of possession to the auction purchaser within Section 47 CPC., has to be decided by Executing Court and not by a separate suit.
9. I have considered the contentions of the learned Counsel appearing for the parties and I have been taken through the material on record, including the judgment and decree passed by the Trial Court and the first Appellate Court and I answer both the Substantial Questions of Law in the affirmative for the following :
REASONS
10. Substantial Questions of Law 1 and 2: Both the substantial questions of law are considered together since they are interconnected and to avoid repetition.
11. It is clear from a perusal of the material on record that the plaintiff is seeking possession of the suit schedule property from the defendants on the basis of the purchase made by him in auction in Execution petition No. 94/1989 pursuant to the decree passed in O.S. No. 9/1978. It is not in dispute that the sale was held on 17.01.1991 and the same was confirmed in favour of the plaintiff on 01.09.1993. The material on record also shows that the plaintiff had made an application under Order 21 Rule 95 CPC, in Mis. No. 73/1995 as per Ex. D5 on 28.08.1995 and a memo was filed on 29.10.1997 seeking for dismissal of the petition for the present and on the basis of the said memo, the application filed under Order 21 Rule 95 CPC, was dismissed by order dated 29.10.1997. It is also clear from a perusal of the material on record that the Trial Court held that the suit for possession is maintainable in view of the decision of the Hon'ble Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and Anr. supra wherein it is observed that when an auction purchaser fails to avail the quick remedy of law provided under Order 21 Rule 95 CPC., the applicant is relegated to the remedy of suit for possession in a regular way and also the decision of this Court in Govindappa v. Premanand supra wherein this Court has held that the auction purchaser is entitled to seek possession by filing an application under Order 21 Rule 95 CPC., or by a separate suit or both. However, the first appellate Court has held that the finding of the Trial Court that the plaintiff can avail the remedy under Order 21 Rule 95 CPC., or file a suit, was erroneous, in view of the decision of the Hon'ble Supreme Court in the case of Harnandrai Badridas v. Debidutt Bhagwati Prasad and Ors. supra wherein a Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court, has laid down as follows:
"It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind App 54 : (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree holder or not, is unquestionably a party to the suit for the purpose of Section 47. 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 first appellate Court held that the said decision was a binding precedent as the decision of the Hon'ble Supreme Court relied upon by the Trial Court in Pattam Khader Khan's case supra was rendered by a Bench comprising of two Hon'ble Judges of the Hon'ble Supreme Court. The first appellate Court held that the decision of the Hon'ble Supreme Court in Harnandrai Badridas's case supra rendered by the Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court, is binding precedent and accordingly, followed the said judgment and held that the suit of the plaintiff was not maintainable. Trial Court was not justified in arriving at the finding that the suit was maintainable on the basis of the judgment rendered by Division Bench of the Hon'ble Supreme Court in Pattam Khader Khan's case supra in view of the judgment rendered by the Full bench of the Hon'ble Supreme Court in Harnandrai Badridas v. Debidutt Bhagwati Prasad and Ors. supra wherein it is held as follows:
"It is important to remember that after the decision of the Privy Council in Ganapathy's case, 45 Ind App 54 : (AIR 1917 PC 121) there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree holder or note, is unquestionably a party to the suit for the purpose of Section 47. 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 first appellate Court held that the decision of the Hon'ble Supreme Court in Harnandrai's case is binding precedent and accordingly, followed the said judgment and dismissed the suit of the plaintiff. Following the decision of the Hon'ble Supreme Court in Harnandrai's case, this Court has held in the case of Gat Nagamma v. Hardar Bahubali Supra that the question of delivery of possession to the auction purchaser within Section 47 CPC, has to be decided by the Executing Court and not by a separate suit. It is well settled law of precedent that the decision rendered by a larger bench would prevail and law laid down by three Judges' Bench would prevail over decision given by two Judges' Bench as laid down by Hon'ble Supreme Court in Mahanagar Railway Vendors Union v. Union of India, 1994 Supp (1) SCC 609 When the decision rendered in Harnandrai's case Supra is by a bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court and the decision rendered in Pattam Khader Khan's case Supra is by a Bench comprising of two Hon'ble Judges of Hon'ble Supreme Court, it is clear that the first appellate Court has rightly come to the conclusion that the decision in Harnandrai's case is a binding precedent and would prevail and has to be followed. Therefore, in view of the said decision of the Hon'ble Supreme Court in Harnandrai's case, it is clear that the suit was not maintainable and the remedy of the auction purchaser is to make an application in the Executing Court, in view of the explanation to Section 47 of the Code of Civil Procedure. In view of the above said authoritative pronouncement of the Hon'ble Supreme Court, which is a binding precedent on all the Courts, it is clear that the first appellate Court was justified in reversing the judgment and decree passed by the Trial court and dismissing the suit of the plaintiff holding that the suit is not maintainable, and in view of the same, it is unnecessary to go into the contentions urged by the learned Counsel appearing for the appellant as to the right of the auction purchaser to pursue both the remedy under Order 21 Rule 95 CPC., and by filing a suit for possession under Article 65(c) of the Limitation Act. The contention of the learned Counsel for the Appellant that ingredients of Order 21 Rule 95 CPC., were not satisfied in the present case has no basis either in the pleading or evidence and was not contended before the first appellate Court or Trial Court and it is a pure question of fact which does not give rise to any substantial question of law among the parties to this appeal. Accordingly, I answer both the substantial questions of law in the affirmative and pass the following order:
The appeal is dismissed. The judgment and decree passed by the Court of the Civil Judge (Sr. Dn), Madhugiri, in R.A. No. 517 2002 dated 11.04.2003 is confirmed. However, having regard to the facts and circumstances of the case, there shall be no order as to costs in this appeal.