Meyappa Chetty v. Meyappan Servai .

1. The order under appeal was passed on an application tinder Order XX Rule 97, Civil Procedure Code, by respondent, assignee of a decree in a suit in ejectment, for removal of the obstruction to delivery in execution, raised by appellant, second respondent in the lower Court, and his son, third respondent, now deceased, whom he represents. Appellant claimed the property in virtue of a purchase, valid, as he contends, against respondent, noth withstanding that it was pendente lite. We have to decide whether an appeal lies against the lower Court's order removing his obstruction and, if so, whether that order was right on the merits.

2. Orders of removal are appealable, if passed under Order XXI, Rule 98, against the judgment debtor or an obstructor at his instigation, But the Utter description does not necessarily apply to a person, who, like appellant, merely relief on a title derived from the debtor, Such a person will, if his good faith is established, be maintained in possession under Rule 99 unless, with reference to Rule 102, the transfer to him was after the institution of the suit in which the decree was passed, Rule 103 deals with the further remedy open to the unsuccessful party by suit or appeal, but not exhaustively, For it has been held in Meyyappa Chetty v. Chidambera Chetty (1) 61 Ind. Cas. 349 : 39 M. L. J. 603 : 12 IL. W. 273, (1920) M. W.N. 562. and Veyindramuthu Filial v. Maya Nadan (2) 58 Ind. Cas. 501 : 43 M. 698 (1920) M, W. N 299, 39 M. L. J. 456 : 28 M. L. T. 312. that this rule does not exclude an appeal, if one is authorised by Section 47. These decisions were no doubt given in cages of delivery to the purchaser in execution, not to the holder of a decree in ejectmant like respondent; and in the second, the obstructor relied on a purchase at Court-sale, in execution of a different decree, not, as here, on a private conveyance, But, although these facta may be material in connection with the merits of the appellant's claim, they justify no distinction against the application of these authorities; and in fact in the penultimate paragraph of my judgment in Veyindramuthu Pillai v. Maya Nadan '(3) 54 Ind Cas. 200 43 M. 107 : (1919) M. W N 881 : 28 M. L. T. 391 : 38 M. L. J. 32,, when it was before a Fall Bench, the position of a decree-holder purchaser in execution of another decree and of a stranger purchaser, whether in execution or private sale, were expressly treated as the same,

3. But, whilst these authorities justify an obstructor pleading a conveyance from the judgment-debtor in proceeding after an order removing his obstruction by appeal under Section 47 and not by suit, that only means that in order to have been appeal heard on its merits and to have an adjudication on his paramount right to possession against the purchaser he must first satisfy the Appellate Court that he is a party or the representative of a party to the decree; and not the less so, because in many cases, of which this is one, that adjudication and the decision whether he is entitled to proceed under Section 47 will rest on the same foundation. In the present case it no doubt appears that appellant was for a short time on the record of the suit in which the decree was passed as 105th defendant. But he was impleaded without notice and his name was removed without his participating in the proceedings. His case, therefore, resembles Gadicherla China v. Gadicherla Seetayya(4) 21 M. 45 : 7 Ind Dec. (n. s.) 383 not Remaswami Sastrulu v. Kameswaramma(5) 23 M, 36l : 10 M. L. J, 126, 8 Ind. Dec. (N. S ) 653. and we mast, therefore, decide whether he is a proper party to proceedings under Section. 7 in the other character on which he relies as the representative of a party to the decree. That in, whether his conveyance of the suit property is for the present purpose valid. His connection with the property is alleged as originating in. Exhibit I, a sale by 5Cth defendant on 4th September 1901 to the sons of Nainar Mahomed, of whom one is 71st defendant, and Exhibit II, a sale by them to him on 3rd October 1901. These sales were, it is not disputed, pendente lite, the plaint in respondent's suit having been presented on 2nd August 1901 and registered on 3rd September 1901, the day before the former document, The lower Court has, however, found, and these findings are not disputed, that 50th defendant had already on 2nd December 1896 given Nainar Mobamed, who died before the suit, a registered agreement to sell, Exhibit 111, although possession did not pass to the latter or his cons, but only later to appellant. The contention is that appellant's title relates beck to the date of Exhibit III and is, therefore, unaffected by the doctrine of lis pendens.

4. This has been supported only by reference to eases, in which an agreement to sell or mortgage made before attachment, but merged later in an actual transfer, was held enforceable against the subsequent purchaser at Court-sale Savithri Ammal v. Rama-sami 8 M. L. J. 266; Rapineedu v. Venkayya 7 Ind. Cas. 795 : 21 M. L. J. 82 : 8 M. L. T. 197; (1910) M. W. N. 440.; Bebela Venkata Beddi v. Mangadu Yellappa Ohetty 38 Ind. Cas. 107 : 5 L. W. 234. and Madan Mohan Be Sarkar v. Rebiti Mohan Poddar 34 Ind. Cas. 953 : 23 C. L. J. 115 : 21 C. W. N. 158. the two last mentioned being referred to with approval by Seshagiri Aiyar, J. in Chamiyappa Tharakan v. Rama Iyer 62 Ind. Cas. 121 : 44 M. 232 : 40 M. L. J. 65 : (1921) M. W. N. 53. These decisions, it should be observed, were given in suits and accordingly were also referred to as direst authorities against the admissibility of this appeal and a?, so far, inconsistent with Kuppana Kaundan v, Kumara Kavundan 7 Ind. Cas. 418 : 34 M. 450 : 8 M. L. T. 240; (1910) M. W. N. 574 : 20 M. L. J. 961. on which appellant originally relied in that connection. But it is a sufficient answer to this that there was no question, except in Eapineedu v. Venhayya (?) of any order in claim or obstruction proceedings ; and in it the order on the plaintiff's claim was passed before he had completed his title by taking a conveyance. To return, however, to the main argument, it derives no assistance from these cases. For, if they were in point, their tenor, and in particular the reference in Bebela Venkata Reddi v. Mangadu Yellappa Chetty 38 Ind. Cas. 107 : 5 L. W. 284. to Section 40 of the Transfer of Property Act, suggest that the enforcement of prior agreements to purchase is contemplated only against subsequent purchasers, who have notice of them; and appellant, who in fact did not refer to Exhibit IV in his counter-petition at all, has not proved that respondent or his assignor bed notice of it either during the suit or before the latter s purchase. And next, a fundamental ground of distinction, there is no analogy in this respect between deliveries after attachment and Court-sale and those made under an ejectment decree. For in the former the original title of the judgment-debtor is common ground for all concerned and, in the words used in Rebela Venkata Reddi v. Mangadu Yellappa Chetty 38 Ind. Cas. 107 : 5 L. W. 284. the decree-holder can be regarded as selling the property subject to an obligation attached to its ownership, whereas in the latter that ownership is ordinarily, as it is here, precisely the matter in dispute and has been negatived by the decree under execution. No suggestion has been made that the title of 50th defendant as against respondent was any butter at the date of Exhibit III than it was when the suit began or the subsequent conveyances were giver; and further 71st defendant, one of appellant's transferors and a party throughout to the suit, failed equally with 50th defendant to establish his claim. To allow the validity of that claim to be agitated by appellant in the present proceedings would involve not only an infringement of the doctrine of lis pendens, but the authorisation of an attack in execution on the correctness of the decree, to which principle and convenience are opposed; and it is immaterial that, in spits of its being pinierde lite, appellant's conveyance my, any learned brother points out, have some legal consequences against 50th defendant, when it has none against respondent, who alono ia engaged in this dispute.

5. This entails that appellant's conveyance must for the present purpose be regarded as invalid against respondent and, therefore, that the former has not established his right either to retain possession on the merits or, as the representative of a party, to appeal under Section 47. The two remaining points raised may, therefore, be dealt with shortly. The first is that the respondent is now deberred from applying for removal of appellant's obstruction, because the decree-holder did not apply under Order XXI, Rule 97, when he was obstructed in a previous attempt to obtain delivery on 23rd March 1919, This is argued alternatively on the grounds that an application for removal of a second obstruction made, as this is, more than thirty days after acquiescence in a previous one is berred by Article 167, Schedule I of the Limitation Actc, and that such acquiescence deprives the person entitled to possession of any farther right to obtain it in execution and, therefore, of the right to removal of obstruction to his doing so. As regards limitation, the obstruction referred to in the third column of the Article mast, as this Court held in Ramasekira Pillai v. Bharmaraya Goundan 5 M. 113 : 2 Ind. Dec. (N. S.) 79., be that referred to as complained of in the first and it would not be in accordance with fact or the ordinary use of words to throat the two obstructions which are in question, as continuous and to refuse to distinguish between them. As regards the more general contention it is material that the Code nowhere supports it explicitly and that Order XXI, Rule 97 is worded as merely permissive and as affording a summary procedure, which the obstructed person has an option to use or forego, That is one ground taken in the judgment in Muttia v. Appasami 13 M. 504 : 4 Ind. Dec. (N. S.) 1063. and is the besis of the exhaustive discussion of the matter in Raghunandan Frosad Misra v. Bemeharan Manila 49 Ind. Cas. 150 : 4 P. L. J. 94; (1919) Pat. 81 (F. B.). Respondent would distinguish the former case on the ground that the parties concerned were the decree-holder purchaser and judgment debtor, relying on Vinayakrav Amrit v. Bevrao Gcvini 11 B. 473 : 6 Ind. Dec. (N. s.) 311. and the judgment of Aikman, J., in Kesri Naruin v. Abtil Hasan 26 a. 365 : 1 A. L. J. 86; A. W. N. (1904) 46., But, whatever the significance of this distinction might be, if the question were still of the right of appeal against an actual order under Rule 98 or Rule 99, the facts in the first of these decisions and the reasoning in both are too obscure to support it for the present purpose; and in the second, Knox, J., held that the principle contained in the ruling in Muttia v. Appasami 13 M. 504 : 4 Ind. Dec. (N. S.) 1063. governed the case. That principle, whiah was applied by the Patna High Court between the judgment-debtor and a stranger purchaser, was enunciated "by it and in Muttia v. Appasami 13 M. 504 : 4 Ind. Dec. (N. S.) 1063. generally and as founded on the comprehensive language of Rule 97 and the corresponding language of the earlier Code; and the references in the later decisions to the position of those concerned can be justified on the ground that the argument before the Court was concerned mainly with the question whether, with reference to the then Section 244, an appeal would lie. In these circumstances, this objection must be disallowed.

6. Lastly, appellant demurs to the lower Court's refusal to award him compensation for the building, which he has erected on the property during his possession. That can be shortly dealt with. No such claim is countenanced by the decree ; and the question, whether it is sustainable and agdust whom, respondent, who is alleged to have acquiesced in the expenditure, or the 50th or 71st defendant, who gave appellant a bed title, would (even if the present proceedings could be regarded as under Section 47) not be one arising in execution which could be dealt with in them. The appeal fails and in dismissed with costs.

Rmesam, J.

7. The facts are fully stated in the judgment of my learned brother and need not be repeated.

8. The first question that arises is, whither the order of the Court below wis passed under Section 47 and is, therefore, appealable. Whether the purchase by the appellant is affected by the rule of lis pendens or not it is certainly not void. A transfer pendente lite is inoperative only to affect the opposite party's rights tinder the decree; it is certainly operative to transfer such rights of the vendor as may exist in the light of the findings in the suit. It is an Resident that it was found that the vendor had no title in this ease. It is also operative to enable the transferee to maintain a suit for damages for breath of sevenant for title. In this case it also operated to pass the vendor's possession to the transferee. In my opinion there is a valid contract of sale, as between the appellant and his vendor and whatever its effect may be on the respondent's rights, the appellant is the representative of the 50th defendant, The order of the Court below is a decree and san be questioned only by way of appeal.

9. Coming to the merits, I agree with my learned brother in holding that the purchase by the appellant is inoperative against the respondent by reason of the rule of lit pendens and cannot be relied on for the purpose of resisting delivery to the respondent or for claiming compensation. As to the eases relied on by the appellant Savithri Arhmal v. Samatami 8 M. L. J. 266.; Bdpineedu v. Venkayya 7 Ind. Cas. 795 : 21 M. L. J. 82 : 8 M. L. T. 197; (1910) M. W. N. 440. and Madan Mohan De Sarhar v. Eebuti Mohan Poddar 34 Ind. Cas. 953 : 23 C. L. J. 115 : 21 C. W. N. 158. I do not think they are relevant as there is no mere than an apparent analogy between the question arising in these oases, vit, the validity of the purchase of property attached in execution of a decree after the attachment and that of a purchase pendente lite of property the subject of the suit. It may be that where A agreed to sell property to Bt and 0 then purchased it with notice of the agreement, B has an equitable interest in the property [Thiruven-hata Chariar v. Seshadri Iyengar 34 Ind. Cas. 488 : 30 M. L. J. 559 : 3 L. W. 457 : 19 M. L. T. 389. distinguishing Kurri Veerareddi v. Ettrri Bepi-reddi 29 M. 336 : 16 M. L. J. 495 : 1 M. L. T. 153 (F. B.). vide also Section 91 of the Trusts Act and the definition of Trustee" in Section 3 of the Specific Relief Act and illustration (j)]. But where we have merely an agreement by 4 to B and no more, B has no interest in the land Kurri Veerareddi v. Kurri Bepifeddi 29 M. 336 : 16 M. L. J. 495 : 1 M. L. T. 153 (F. B.); Ramanathan Chetty v. Renganathan Chetty 43 Ind Cas : 138 : 40 M. 1134 : 6 L. W. 300 : 22 M. L. T. 173 : 33 M. L. J. 252, (1917) M. W. N. 757. Mating Inn 38 Ind. Cas : 938 : 41 c. 542 at p. 552 : 21 M. L. T. 18 : 15 A. L. J. 82; (1917) M. W. N. 117 : 32 M. L. J. 6 : 25 C. L. J. 108 : 19 Bom. L. R. 179 : 21 C. W. N. 500 : 5 L. W. 532 : 10 Bur. L. T. 69 : 41 I. A. 15 (P. C.). The passage at page 277 of Bennett on Lit Pendens relied on for the appellant is perhaps besed on the fast that in England and America B would be retarded as an equitable owner of the property [See Bebela Venkata Beddi v. Mangadu Yellappa Ohetty (8) end Maung Shuie Qoh v. Maung Inn 38 Ind. Cas : 938 : 41 c. 542 at p. 552 : 21 M. L. T. 18 : 15 A. L. J. 82; (1917) M. W. N. 117 : 32 M. L. J. 6 : 25 C. L. J. 108 : 19 Bom. L. R. 179 : 21 C. W. N. 500 : 5 L. W. 532 : 10 Bur. L. T. 69 : 41 I. A. 15 (P. C.).] To allow the appellant's contention is to allow the rights of the respondent under the decree to be affected-the very result sought to be avoided by Section 52 of the Transfer of Property Act. The appeal, therefore, fails on the merits.

10. The only other question in the case is the question of limitation. As to this, I have nothing to add to the reasons in my learned brother's judgment. It follows that we do not agree with the remark in Ramasekara Pillai v. Dharmaraya Qoundan 5 M. 113 : 2 Ind. Dec. (N. S.) 79. that a Court ought not to issue a second warrant for delivery of possession.

11. In the result the appeal is dismissed with costs.