Lakshmanan vs Manoranjitha Ammal and Another

Shanmukham, J.—In this proceeding some interesting questions arise relating to execution. The petitioner is the auction purchaser. He is

aggrieved against the order passed by the learned District Munsif, Cuddalore, in E.A. No. 1321 of 1984, which was an application by the

respondents herein to declare the execution proceedings as invalid and void, and to order re-delivery of item No. 1.

The necessary facts for the disposal of this proceedings are given below:

The petitioner was the highest bidder in the court auction held on 16th February, 1971 of two items of properties in E.P. No. 97 of 1978 in O.S.

No. 67 of 1958. The judgment-debtors 1 and 2 passed away. In that execution petition, the respondents herein are respondents 3 and 5 besides

other respondents, viz., 4 and 6 to 9. The sale was confirmed on 30th September, 1972. On the strength of the sale certificate, the petitioner filed

E.A. No. 1824 of 1972 for delivery of items 1 and 2. On 19th December, 1972, delivery was, ordered; pursuant thereto, the petitioner is said to

have taken possession of item 2, while in respect of item 1, delivery could not be made. Thereafter, the said execution application was dismissed.

Subsequently, the petitioner took out E.A. No. 1591 of 1983 seeking delivery of item 1; on 3rd February, 1984 the said item is said to have been

taken delivery of by the petitioner. It is thereafter, the respondents came forward with E.A. No. 1321 of 1984 to declare the proceedings in E.A.

No. 1591 of 1983 as invalid and void, and to order re-delivery. As already stated re-delivery was ordered on 10th May, 1985 and it is this order

that is sought to be revised in this reision.

Mr. V. Krishnan, Learned Counsel for the petitioner made the following submissions:

Section 66 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) bars the respondent''s application E.A. No. 1321 of 1984.

The second contention is that by the release deed relied on by the respondents, viz., Ex. A4, dated 10th April, 1975, no title is conveyed by the

petitioner to respondents. Therefore, they cannot be the representatives of the petitioner auction purchaser and have no locus standi to maintain

E.A. No. 1321 of 1984 u/s 47 of the Code. In any event, the appropriate provision under which the respondents ought to hae claimed the relief

sought for in E.A. No. 1321 of 1984 is Order 21, Rule 99 of the Code, but not Section 47. In such a case, Article 128 is attracted and therefore,

E.A. No. 1321 of 1984 is barred by time The connected submission is, the present proceeding E.A. No. 1321 of 1984 does not relate to

execution, discharge or satisfaction of the decree and therefore, it is not maintainable u/s 47.

Besides countering all the above submissions made, Mr. Sampath, Learned Counsel for the respondents pointed out that on the evidence in this

case, there is ample proof that the petitioner has prarctised fraud on the Court, while he obtained order for delivery in E.A. No. 1591 of 1983 and

therefore, on this sole ground, the order passed in E.A. No. 1591 of 1983, is liable to be set aside.

Before I proceed to examine the contention advanced by the Learned Counsel for the petitioner and the counter arguments by the Learned

Counsel for the respondents, it is convenient to examine the respondents'' contention that the order for delivery in E.A. No. 1591 of 1983 is liable

to be set aside because of the fraud practised by the petitioner. A reference to the original records in E.A. No. 1591 of 1983 shows that notice

was ordered to respondents 3 to 9. 1 and 2 having died. As already pointed out, the 3rd respondent is the 1st respondent herein and 5th

respondent therein is the 2nd respondent in this revision. Pursuant to the memorandum filed by the petitioner herein to the effect that the petitioner

is not proceeding against respondents 4 to 9, the Court below dismissed the execution petition as against respondents 4 to 9 on 11-11-1983.

Therefore, the only respondent against whom delivery was ordered, was the 3rd respondent in the said execution application, E.A. No. 1591 of

1983 (1st respondent herein). Even as against the 1st respondent, service is said to have been affixed. As 19th January, 1984 was declared

holiday, the matter was taken up on 20th January, 1984 and on that day, delivery was ordered. The Tamil endorsement dated 20th January, 1984

in E.A. No. 1591 of 1983 is not legible. On the other hand, it emerges from Exs. A17 and A21 that a vakalat said to have been signed by the 1st

respondent herein was filed in E.A. No. 1591 of 1983 by one R. Subramaniam, advocate, that the said advocate is said to have represented to the

Court that the first respondent herein has no objection to an order for delivery, and that it is because of such representation, delivery appears to

have been ordered on 20th January, 1984 returnable by 16th February, 1984. The 1st respondent issued original of Ex. A17 notice dated 12th

September, 1984, to the advocate, R. Subramaniam, Ahamadullah, advocate''s clerk and Lakshmanan, complaining that she never met the

advocate Subramaniam, that she never signed any vakalat, that she never ''appointed the said advocate as her counsel, that she came to know

through her son Ekambaram, the 2nd respondent herein that the said three persons had conspired together in presenting a vakalat appearing to

have been signed by her, and that therefore she intended to take criminal action. The notice issued to advocate R. Sabramaniam is received by R.

Ramaswamy as seen from Ex. A19, postal acknowledgment, It is significant to notice that the petitioner''s'' counsel in E.A. No. 1591 of 1983, is

the said Learned Counsel R. Ramaswamy. Thus, it is obvious that Mr. R. Subramaniam was attached to R. Ramaswamy, who is the counsel for

the auction purchaser (petitioner herein) in E.A. No. 1591 of 1983. It is further patent that while the petitioner herein was represented by Mr.

Ramaswamy, advocate, the 1st respondent herein was represented by R. Subramaniam, an advocate attached to the office of R. Ramaswamy. Be

that as it may, it is rather startling to note the contents in the reply notice dated 25th September, 1984 sent by R. Ramaswamy, advocate, on behalf

of R. Subramaniam, advocate and Ahamadullah, advocate''s clerk. It is this advocate Ramaswamy who has filed and prosecuted E.A. No. 1591

of 1983 on behalf of the petitioner herein. In the reply, this is what is stated:

The allegations in your notice dated 12th September, 1984 are ail false, Your brother Lakshmana Pillai came and gave a vakalath and on the

strength of the vakalath given by Lakshmana Pillai, my clients conducted the proceedings. It was represented by Lakshmana Pillai that yourself and

Lakshmana Pillai are living together and that you have no objection for re-delivery. My clients believed that representation and acted upon that

representation. My clients are not liable to pay any damage of Rs. 1,000.

According to the said reply, Lakshmana Pillai (petitioner herein) gave the vakalat to advocate Subramaniam and that the petitioner herein told

Subramaniam, the 1st respondent and the petitioner are living together, that the 1st respondent has no objection for re-delivery and that both

advocate Subramaniam and advocate''s clerk Ahamadullah believed that representation. It is therefore clear that the vakalat was not signed by the

1st respondent, in the presence of the advocate Subramaniam Who attested the said signature of the 1st respondent, is not clear from the evidence

in this proceeding. There is no reference in the reply notice as to the person who is authorised to make the attestation and who made the

attestation. These apart, the 1st respondent has tendered evidence in E.A. No. 1321 of 1984. In chief examination, she had stated that she never

met Subramaniam and she never signed any vakalat. In cross-examination, she denied that the vakalat which was shown to her, contained her

signature. It is relevant to notice the following endorsement made by the Court below in bracket in that connection. It runs as follows:

Counsel shows the signature in the vakalat given by the party to Subramaniam and also Thiru K. Venugopal"". She further denied having gone to

any advocate''s office'' and it is Krishnaswamy Iyengar who is looking after her interest in the proceeding.

In the course of her testimony, she has referred to Exs. A17 and A21. When the 1st respondent so disputed her signature in the vakalat and

accused not only the petitioner, the advocate''s clerk and also advocate Subramaniam, no evidence contra was adduced on the side of the

petitioner. Indeed, even the petitioner shunned the witness box in E.A. No. 1321 of 1984. Then, I have no option but to accept the testimony of

P.W.L, (1st respondent). It would immediately follow the petitioner has played a fraud on Court in filing a vakalat and misrepresenting to the Court

that it was the vakalat given by the 1st respondent and that the 1st respondent had no objection to the order for delivery to be made in E.A. No.

1591 of 1983. Besides, the resultant position is, the 1st respondent was not duly served with notice in E.A. No. 1591 of 1983 and yet the Court

below was persuaded to pass an order for delivery on a misleading representation that the 1st respondent has no objection to it. I have already

referred to the fact that the execution was dismissed against other respondents. Then, an order for delivery obtained by the petitioner in E.A. No.

1591 of 1983 was without notice to the judgment-debtors.

It is here, it is necessary to refer to O.21, R.22 of the Code. Before referring to this provision, it is necessary to refer to the submission

advanced by the Learned Counsel for the petitioner. According to the Learned Counsel for the petitioner, though sale certificate was issued as

early as 30th September, 1972, E.A. No. 1591 of 1983 is to execute the order for delivery ordered in E.A. No. 1824 of 1972 and that therefore,

such order passed in E.A. No. 1824 of 1972 can be executed within 12 years period as prescribed under Article 136 of the Limitation Act.

Assuming such a contention to be correct, it is seen that the order for delivery was made as early as 19th December, 1972 in E.A. No. 1824 of

1972, but E.A. No. 1591 of 1983 was presented on 10th March, 1983, i.e., it is beyond two years from ''the date of order made in E.A. No.

1824 of 1972, on 19th December, 1972. In such a case, according to Order 21, Rule 22, the Court executing the decree shall issue a notice to

the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed

against him. The proviso is not necessary for the present purpose because it is not the case of the petitioner that he did obtain an order dispensing

with such notice. On the other hand, records show that notice was ordered. Therefore, unless notice has been served on the respondents in E.A.

No. 1591 of 1983, there can be no valid order for delivery. I have already referred to the fact that the 1st respondent herein was not served, but a

misrepresentation'' was made to the Court, while the execution petition was dismissed as against other respondents. In the above circumstances, I

have no hesitation to hold that there can be no valid order for delivery in E.A. No. 1591 of 1983. An order in violation of Order 21, Rule 22,

particularly in the circumstances aforesaid can be set aside by civil Court invoking its inherent power reiterated in Section 151 of the Code. This is

enough to set aside the order made"" in E.A. No. 1591 of 1983 and to this extent, the order made in E.A. No. 1321 of 1984 directing re-delivery

is unassailable.

According to Explanation II(a) to Section 47 of the Code, an auction purchaser is deemed to be a party to the suit in which the decree is

passed. Thus, one of the ingredients set out in Section 47(1) of the Code, viz., an auction purchaser is a party to the suit, is fulfilled. The other

ingredient is that the question shall relate to execution, discharge or satisfaction of the decree. Explanation II(b) to Section 47 provides that all

questions relating to the 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. In the instant case that the question relates to delivery of

possession, is beyond doubt, because the respondents claimed a declaratio in that execution proceedings in E.A. No. 1591 of 1983 are wholly

invalid and void and for an order for re-delivery of the property, i.e., item No. 1 Thus, even this condition is fulfilled; in other words, Section 47(1)

is duly complied with by E.A. No. 1321 of 1984. If so, I find no difficulty in rejecting the contention that E.A. No. 1321 of 1984 is not

maintainable u/s 47 of the Code.

Under Ex. A4, it is seen that it is a registered document executed by the petitioner in favour of the 2nd respondent. Under the said document,

the petitioner has admitted that item No. 1 is the joint family property of the respondents, that the property continues to be in the possession and

enjoyment of the 2nd respondent till that date, that though he has purchased in Court auction he did not take delivery, that the property continues

to be in the 2nd respondent''s possession, that because the 2nd respondent was apprehensive of the sale certificate being issued in his favour he

had surrendered his rights as auction purchaser to and in favour of the 2nd respondent in consideration of having received a sum of Rs. 100 and

that neither he nor anyone claiming under him has any right whatever in item No. 1. One thing is evident from the said document and that is the

petitioner has accepted the 2nd respondent''s title to the suit property notwithstanding the court auction sale in his favour and also that if he had any

such right, he had surrendered the same to and in favour of the 2nd respondent. It is relevant to notice that this document is dated 10th April, 1975

and registered oh 16th April, 1975 in the Office of the Sub-Registrar, Cuddalore. It is equally important to notice that though E.A. No. 1824 of

1972 was dismissed even on 2nd January, 1973, the petitioner did not take any action for obtaining delivery of item No. 1, which he could not in

E.A. No. 1824 of 1972. Thus, for twelve years, the petitioner did not care to recover possession of item No. 1, albeit the sale certificate in his

favour. Ex. A4 and the subsequent conduct of the petitioner demonstrate that he has given up his rights as court auction purchaser in favour of the

2nd respondent. Such subsequent circumstance, it is repeatedly pointed out, has also to be taken into consideration by the Court while it has to

settle the claims of the rival parties. Therefore, the Court below was perfectly right in taking into consideration Ex. A4 as also other attendant

circumstances and the conduct of the petitioner equally. Thus, I find that the court below quite rightly directed re-delivery as prayed for by the

respondents.

However, let met advert to the other argument advanced by the Learned Counsel for the petitioner. According to the Learned Counsel, Section

66 of the Code bars the present application, E.A. No. 1321 of 1984. Section 66 provides;

66(1) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on

the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims and in any suit by a

person claiming title under a purchase so certified, the defendant shall not be allowed to plead that the purchase was made on his behalf or on

behalf of someone through whom the defendant claims.

(2) Nothing in this Section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate

fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though

ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.

The said provision contemplates two different situations. The first is that no suit shall be maintained against any person claiming title under a

purchase certified by the Court on the ground that such purchaser is benamidar for the plaintiff in that action. The other is that in a suit brought by a

court auction purchaser, the defendant cannot maintain a plea that the purchase was on his behalf or of any one claiming through whom the

defendant claims. But the present proceeding is not a suit brought by the auction purchaser as visualised by the second limb of Section 66. In such

a case, Section 66 will have no application to the instant case. In other words, on the plain meaning of Section 66, E.A. No. 1321 of 1984 is not

barred.

In S.M. Karim Vs. Mst. Bibi Sakina, , the Supreme Court has dealt with the first limb of Section 66. In that case, the appellant before the

Supreme Court claimed certain property alleging that he had purchased it from Syed Aulad Ali, who had purchased it benami in the name of Hakir

Alam; in that case, Hakir Alam is the court auction purchaser. The Supreme Court therefore held that the protection available by Section 66 of

CPC is not only against the certified purchaser but also against any one claiming through him and that therefore Section 66 bars the claim.

It is useful to notice that Section 66 is placed under Part II relating to Execution. The content of Section 66 has to be understood in the

background of Section 47. I have already held that all questions relating to delivery of possession of a property sold in public auction to such an

auction purchaser shall be deemed to be questions relating to execution, discharge or satisfaction of the decree and that for the purpose of Section

47, an auction purhcaser shall be deemed to be a party to the suit, in which the decree is passed and that such questions should be determined by

the execution court and not by a separate suit. Therfore, from a careful examination of Section 47 in contrast with Section 66 of the Code, it

clearly emerges that what is forbidden u/s 66 is a suit against an auction purchaser by any one contending that the auction purchaser is only a

benamidar; so too, in a suit to be brought by an auction purchaser or any one claiming under him, the defence that such auction purchaser is

benamidar for the defendant or someone through whom the defendant claims, cannot be entertained. To reiterate, any change to the certificate of

sale issued by a Court has to be made in the execution proceeding in which the said certificate is issued. Thus, I find myself unable to agree with

the contention that Section 66 of the Code bars the present proceeding instituted by the respondents.

In my view, it is unnecessary to advert to the arguments whether Ex. A4 dated 10th April, 1975 a release deed executed by the petitioner to

the 2nd respondent acknowledging the 2nd respondent''s title to item No. 1 conveyed any interest to the 2nd respondent and whether on that

account, the respondents have no locus stand to maintain this petition. For, respondents 1 and 2 are judgment-debtors 3 and 5. Here is a

controversy between a certified purchaser on the one hand and the judgment-debtors on the other. Assuming the 2nd respondent also claimed

through the petitioner under Ex. A.4, he still retains the character as judgment-debtor. Indeed, in Harnandrai Badridas Vs. Debidutt Bhagwati

Prasad and Others, the Supreme Court held:

After all, a decree-holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not

retain his character of a party to the suit until the delivery of possession to him of the property purchased by him.

Equally is the contention that the present application, E.A. No. 1321 of 1984 ought to have been filed under Order 21, Rule 99 of the Code

hardly tenable. I have already referred to the fact that the respondents are judgment-debtors. On the other hand, Order 21, Rule 99 of the Code

provides a remedy to any person other than judgment-debtor if he is dispossessed by a holder of a decree or by the Court auction purchaser.

Yet another contention advanced by the Learned Counsel for the petitioner is that the relief claimed in E.A. No. 1321 of 1984, does not relate

to execution, discharge or satisfaction of the decree and therefore, the application cannot be maintained u/s 47 of the Code. The relief as already

pointed out is restricted to item No. 1. Even this argument, I find, is rather fallacious. For under Explanation II(B) of Section 47 of the Code, all

questions relating to delivery of possession of such property to an auction purchaser are also to be disposed of u/s 47, but not by separate suit.

Hence, the revision petition fails and is dismissed with costs.