Judgement

VAIDIALINGAM, J. :- This is an appeal by the defendant against the decree and judgment of our learned brother Mr. Justice Joseph, confirming the decrees of the two lower courts.

2. There is no dispute about the facts. The plaintiff is the decree-holder purchaser of the suit properties in execution of the mortgage decree obtained by him in O.S. 1875/1104 District Munsiffs Court, Nagarcoil against one Umayarama. The mortgage in his favour was on 12-10-1100 and the decree in the mortgage suit, Ext. A, was on 12-10-1105. He purchased the properties on 28-3-1113 in court sale and the sale was confirmed on 29-4-1113 and he obtained delivery of the properties on 11-1-1117 as evidenced by the delivery receipt Ex-C.

3. In the meanwhile, the defendant, in execution of the decree in A.R.C. 6236/1109 appears to have attached the suit properties on 2-10-1110 and ultimately purchased the properties under the said money decree. The defendant also obtained possession on 27-6-1113 as evidenced by Ex. 4.

4. On 27-8-1117 the present plaintiff sold the suit properties to one Kanakamony Animal. The latter filed O.S. 894/1117 District Munsiffs Court, Nagrercoil, as there was obstruction by the present defendant by virtue of his purchase in A.R.C. 6236/1109. The present plaintiff, her assignor, and the present defendant, who obstructed her possession were defendants 1 and 2 respectively in the said suit. When the said suit was pending, Kanakamony Ammal retransferred the property to the present plaintiff who was the first defendant therein.

The present plaintiff filed an application to transpose himself as an additional plaintiff along with Kanakamony Ammal in the said suit. But as it was opposed by the present defendant, his application was rejected and the suit itself was ultimately dismissed for default of the plaintiff therein. The effect of the order dismissing the suit as also the effect of the application to get himself transposed in O.S. 894/1117 will be considered later, as it forms one of the main contentions in this appeal before us.

5. After the rejection of the application to get himself transposed in O.S. 894/1117, the present suit was filed for declaration of title and recovery of possession from the defendant.

6. The main contention raised in the suit was that the sale and execution proceedings in A.R.C. 6236/1109 in favour of the defendant were vitiated by lis pendens and not binding on the plaintiff.

7. The suit was contested on various grounds. Among the legal contentions, S. 47 C.P.C. was pleaded as a bar. Further the dismissal for default, of O.S. 894/1117 was also pleaded as standing in the way of the institution of the present suit.

8. Both the learned District Munsiff and the learned District Judge held against the defendant on all points and decreed the suit.

9. In S.A. before our learned brother Mr. Justice Joseph, two main contentions appear to have been raised regarding the maintainability of the suit, namely, one based on Order IX rule 9 C.P.C. and the other based on S. 47 of the C.P.C. The learned Judge agreed with the views of both the lower courts and confirmed the decrees.

10. It is seen from the judgment of the learned Judge that the defendants counsel applied for leave to appeal on the ground that the suit is not maintainable, in view of Order IX rule 9 of the C.P.C. and the learned Judge has certified that it is a fit case for appeal and granted leave.

11. In appeal before us, Mr. T.N. Subramania Ayyar, learned counsel for the defendant-appellant has urged the same two contentions namely, the bar under Order IX rule 9 C.P.C. and Sec. 47 C.P.C.

12. The bar under O. IX rule 9 is sought to be made out this way : O.S. 894/1117 was dismissed by the learned District Munsiff Nagercoil on 18th November 1943 for default of appearance of the plaintiff or her advocate therein. The present plaintiff claiming under the plaintiff in O.S. 894/1117 is debarred from filing the present suit on the same cause of action because of the prohibition contained in Order IX rule 9. No application for setting aside the order of dismissal was made and, therefore, that order has become final.

13. Mr. Madhavan Nair, learned counsel for the plaintiff-respondent contends that there was an attempt by the present plaintiff to get himself impleaded and continue the suit, but that attempt failed because of the opposition of the present defendant on the ground that his clients remedy was by way of a separate suit. Having taken up that position there, it is not open to the defendant to plead in this suit that it is not maintainable.

14. Though no doubt, Mr. Subramania Ayyars contention appears plausible, yet when the actual facts are seen, it will become clear that this contention cannot be accepted.

15. As stated already, the present plaintiff obtained a reconveyance from Kanakamony Ammal during the pendency of O.S. 894/1117. Therefore, he filed an application to transpose himself as an additional plaintiff along with Kanakamony Ammal. In that application, he has stated about the purchase from Kanakamony Ammal and his desire to continue the suit for possession as against the present defendant who was the 2nd defendant therein. But the present defendant opposed the said application on the ground that if the present plaintiff has obtained the assignment of the rights of the plaintiff therein, the proper course is to institute a fresh suit on the assignment and that Kanakamony Ammals suit must be dismissed.

16. When once an assignment has been made, Kanakamony Ammal naturally lost all interests in that litigation and did not take any further steps. In fact, she could not do anything further, because the present defendant contended that her suit must be dismissed because of the assignment made by her. The learned District Munsiff, on 18th November 1943, dismissed the application of the present plaintiff to get himself transposed. This order is marked as Ext. G in these proceedings.

The court there observes that the remedy was to institute a fresh suit and as such, dismissed the application. On the same day, the learned District Munsiff passed the judgment Ext, 2, in the said suit dismissing the same for default on the ground that neither the plaintiff nor her counsel was present, But it makes a very significant recital in the judgment that

"it seems that the plaintiffs claims have been satisfied by the 1st defendant. In the circumstances, this suit is dismissed for default with costs of the 2nd defendant."

17. A reading of the order Ex. G and the judgment Ex. 2 along with the applications and objections, will make it clear that the present plaintiff could do nothing else in that suit. Though not specifically stated in the order, it is very clear that the learned District Munsiff agreed with the contentions of the present defendant that a separate suit was the remedy of the present plaintiff. Having taken up that attitude and effectively prevented the present plaintiff from getting himself transposed as additional plaintiff, and after giving a quietus to O.S. 894/1117 by having it dismissed for default, in our opinion, it is not open, to the defendant to contend now that the present suit is not maintainable. The doctrine of approbate and reprobate, blowing hot and cold, has been very strongly criticised by the leading decisions of the several courts. It is unnecessary for us to refer to all those decisions except to that of the Privy Council in Ambu Nair v. Kelu Nair, AIR 1933 P.C. 167.

18. The learned counsel relied upon the decision of Mr. Justice Mack in Vwlachala Keddi v. Narayanaswamy, AIR 1949 Mad 646 as also the rulings in Raj Kumar v. Mutsaddi Lal AIR 1952 Punj. 190 and Baru v. Maya Ham, A.I.R. 1952 Punj. 261 in support of his contention that Order IX rule 9 will be a bar in the present case. But all these decisions are cases in which the subsequent suit was filed by the same plaintiff against whom the suit had already been dismissed under Order IX rule 8 C.P.C. That is not the case in the present instance. Therefore, those rulings do not afford any assistance to the contentions of Mr. Subramania Ayyar.

19. In this view, we hold that there is no bar of Order IX rule 9 C.P.C. to the institution of the present suit.

20. The 2nd contention urged by Mr. Subramania Ayyar is that S. 47 C.P.C. is a bar to the present suit. According to him, the plaintiff must proceed in execution of his decree in O.S. 1875/1104 and get actual possession from the defendant and if there was an obstruction, the usual procedure for removal of obstruction should have been pursued in execution itself. We are not able to accept this contention either.

21. It has been found by the two lower courts and also accepted by our learned brother Mr. Justice Joseph that the delivery to the plaintiff under Ex. C was not actual delivery but only a symbolical delivery. From the date mentioned at the beginning of the judgment, it will be clear that the attachment, decree, and delivery proceedings in favour of the defendant were all during the pendency of the mortgage suit in which the plaintiff became ultimately the purchaser of the properties.

That a court sale in execution of a money decree held subsequent to the institution of a mortgage suit is vitiated by the doctrine of lis pendens, is laid down in Subramonia Iyen v. Vaidyanatha Iyen, 1943 Trav. L.H. 133. To a similar effect to the decision of the Division Bench of the Travancore-Cochin High Court reported in Madachi v. Lakshmi, 1950 Trav. Co, LR 636 by Mr. Justice Koshi (as he then was) and Mr. Justice Sankaran.

The learned Judges have reviewed the case law and held suit it is settled law that the sale of the property involved in a mortgage suit, conducted during the pendency of that suit is affected by the doctrine of Lis Pendens. It is not necessary here also to multiply authorities on this point, excepting to refer also to the decision of the Privy Council reported in Jadunath v. Parameswar, AIR 1940 PC 11. There their Lordships have put very clearly the position of a mortgagee-decree-holder-auction purchaser in relation to that of a money decree-holder-auction purchaser. To quote -

"while the purchaser at an execution sale under a mere money decree gets no more than the right, title and interest of the judgment-debtor at the date of the sale, the purchaser under a mortgage decree gets the right, title and interest in the mortgaged subjects which the mortgagor had at the date of the mortgage and charged thereby. Buying the mortgaged property free from encumbrances he gets, as it is sometimes put, the title both of the mortgagee and of those interested in the equity of redemption. He is not a mere successor-in-interest of the owner of the equity of redemption at the date of the sale."

(See pages 14 and 15 of the said report). We respectfully agree with decisions and hold that the suit and other proceedings connected with the decree under which the defendant purchased the suit properties are vitiated by Lis Pendens as against the present plaintiff.

22. Then the question arises whether the present suit based on title and for recovery of possession is in any way hit by S. 47 C.P.C. The effect of a symbolical delivery has been considered by the courts in relation to the contentions raised on the plea of adverse possession. But the principles laid down by those decisions will be helpful in considering the present case. Those decisions lay down that symbolical possession is as effective as actual possession so far as the judgment-debtor and his representatives are concerned. The first decision is that of the Privy Council reported in Sri Radha Krishna v. Ram Bahadur, 34 Mad. LJ 97 : (A.I.R. 1917 P. C. 197 (2)).

Their Lordships held that symbolical possession availed to dispossess the judgment-debtors and their representatives sufficiently. To a similar effect is a Division Bench decision of the Madras High Court reported in Kamayya v. Mahalakshmi 53 Mad. L.J, 339 : A.I.R. 1927 Mad. 849 followed in Sathappa Chetti v. Thayyanayaki Ammal, A.I.R. 1942 Mad 698. The learned Judges in those cases have held that symbolical delivery gave rise to a fresh period of limitation as against the judgment-debtor and his representatives, as they are not entitled to deny that the judgment-debtor was not dispossessed even though not actually evicted from the properties physically.

23. In 1943 Trav. L.R. 133 it has been held that a purchaser in execution of a money decree during the pendency of a mortgage suit is a representative of the judgment-debtor. In Sabbaraya Goundan v. Samiappa Goundan, AIR 1946 Mad 529 a Division Bench of the Madras High Court consisting of Mr. Justice Somayya and Mr. Justice Yahya Ali have held that even if a party got) only a symbolical possession, it is tantamount to actual possession so far as the judgment-debtor or his representative is concerned and that, therefore, S. 47 C.P.C. is not a bar to a suit. We may mention that the facts in the Madras case cited above are almost identical to the case before us and the learned Judges held that a separate suit filed under almost similar circumstances to the present suit was not barred by S. 47 C.P.C There is also a recent judgment of our High Court by the learned Chief Justice and Mr. Justice N. Varadaraja Iyengar in State of Travancore-Cochin v. Meenakshi Ammal 1957 Ker. L.T. 1094 : (AIR 1958 Kerala 309). We have looked into the original full judgment and we find the following observations :

"But all the High Courts, inclusive of the Travancore High Court, are agreed that once delivery has been taken in execution of the decree even if it be only symbolical as referred to in Order XXI, rule 35(2) and rule 36, a suit for recovery based on title will be maintainable at the instance of the decree-holder-auction-purchaser even against the judgment-debtor and his "representatives which term will include lis pendens purchasers in the position of the 1st defendant State herein. The symbolical possession will be treated as actual possession where the suit is against the judgment-debtor or his representatives"

The above decisions clearly show that the present defendant will be a representative of the judgment-debtor and as such, there is no bar under S. 47 C.P.C. We respectfully agree with the decision of this Court referred to above and also that of the Madras High Court mentioned earlier. It follows that the present suit is not barred under S. 47 C.P.C. either.

24. No other points have been argued in the appeal. In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.