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1 - 3 of 3 (0.20 seconds)Section 52 in The Transfer Of Property Act, 1882 [Entire Act]
Debi Singh vs Ramcharan Singh on 29 May, 1928
3. The main contention of Subba Rao in the Courts below and here is that Section 47 of the Code has no application as himself and Seshacharlu (the first respondent in this appeal) derived title through Muneyya, the common judgment-debtor. This contention, which is repeated here, was rejected by the Courts below. If there is not a further complication of the fact that there was a Court sale in favour of Subba Rao, and delivery of possession to him through Court during the pendency of the mortgage suit instituted by Seshacharlu, probably there might be some force in the contention urged on behalf of the appellant. As the purchase by Subba Rao was during the pendency of the mortgage suit, though the transfer was not a voluntary transfer, the principle of Section 52 of the Transfer of Property Act applies and this position has been established in this Court and is not challenged before me. In a case parallel to the present case, the Privy Council in a decision reported in Parameswari Debi v. Ramcharan (1937) 2 M.L.J. 359 (P.C). 438 (F.B.) had to consider the applicability of Section 47 of the Code. There, during the pendency of a suit on mortgage, the appellant obtained a usufructuary mortgage in his favour from the mortgagor and came into possession of the property. Subsequently, during the pendency of the mortgage suit, the equity of redemption of the mortgagor in the property was sold in execution of a mortgage decree and was purchased by the appellant. The mortgagee decree-holder's purchased the property in execution of their decree and obtained symbolical possession from the judgment-debtors. They then applied for actual possession against the appellant who resisted the application on the ground that Section 47 of the Code had no application and that the remedy of the mortgagee-decree-holder-purchasers, if any, was by way of a separate suit. It was also contended that the appellant was not a party to the decree which was sought to be executed against him and there/ore Section 47 of the Code had no application. In repelling this contention, their Lordships of the Judicial Committee observed at page 361 as follows:
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