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Judgment
The appellant''s case has little or no merit. He claims by virtue of an assignment obtained from several of the sons of Krishna Pattar, a mortgagee
of the plaintiff. All these persons were parties to a suit by the plaintiff for redemption of the mortgage and after issue of notice, but before settlement
of issues, the suit was compromised between the plaintiff on the one hand and the 1st and 2nd defendants, two of the brokers, on the other. By the
compromise it was arranged that a renewal should be granted within a given time and in the event of the defendants failing to do all that was
necessary to obtain the renewal, the plaintiff was to obtain possession of the land on payment of the mortgage money. A decree was passed in
terms of this compromise. In the compromise it was stated that it was entered into without reference to the other defendants, and though their
names were entered in the heading of the decree there was no order as regards them, which could be taken as adjudicating upon any matter as
between them and the plaintiff. The 1st and 2nd defendants not having done what was necessary to entitle them to obtain the renewal, the plaintiff
paid into Court the amount due by him and got an order for delivery of the land. A tenant who was in occupation of the land, and who was one of
the defendants who had not joined in the compromise, obstructed the delivery, and on the plaintiff''s making application to the Court to remove the
obstruction, his application was registered as a suit u/s 331, C.P.C. Subsequently the present appellant was added as a party defendant and the
rights of all parties have been tried and a decree for redemption passed in favour of the plaintiff.
Mr. T.R. Ramachandra Aiyar for the appellant contended that the procedure adopted was wrong and the matter was one which should have
been investigated and disposed of u/s 244, C.P.C., only, and as that section prohibits a separate suit, what has been done must be quashed and
the plaintiff must be referred to his proper remedy.
We are unable to accede to this argument. As pointed out by Mr. P.R. Sundara Aiyar, Section 331 directs that when any obstruction is caused
by a person other than the judgment debtor, the decree-holder''s application should be registered as a suit. The obstructing tenant was not a
judgment-debtor, as denned in the Code, no decree having been asked against him, and the application of the plaintiff was in our opinion rightly
registered as a suit. In Vibhudapriya Thirthaswami v. Vidyanidhi Thirthaswami I.L.R.(1893) M. 131, the attention of the Court does not seem to
have been drawn to the provisions of this section and the Pull Bench case of Ramaswami Sastrulu v. Kameswaramma ILR 22(1900) M. 361, was
not a case of obstruction like the present.
Mr. Ramachandraiyar urged that even in this view it was not competent to the Court to make a decree for redemption. We are unable to follow
this contention. The decree obtained by the plaintiff in the course of the execution of which he was obstructed, was a decree for redemption, and
as the parties resisting the execution established no claim independent of the mortgage right relied on by the plaintiff, the decree given is virtually an
order for the execution of the decree, the carrying out of which had been obstructed. In the view we have taken it is unnecessary to consider the
other questions raised in the argument on either side. We dismiss the second appeal with costs.