AI Structured Summary
Not yet generated for this judgment
Judgment
Venkatadri, J.—This appeal arises out of the execution proceedings in O. S. No. 80 of 1956 on the file of the Sub Court, Tiruchirapalli. The
petitioner filed an Execution Application No. 449 of 1961 out of which this appeal arises under O. 34, R. 5, Ss. 47, 146 and 151, C. P. Code. It
is necessary for me to state a few facts more in what circumstances the appellant filed the above execution application. Respondents 3 and 4 were
the defendants in the said suit O. S. No. 80 of 1956. They executed a mortgage in respect of the suit property in favour of the second respondent,
the plaintiff in the above said suit. He obtained a mortgage decree and in execution thereof, he brought the property to sale and in the auction, the
first respondent became the purchaser of the property and the sale has to be confirmed. It is at that stage the appellant intervened by filing the
above application and deposited a sum of Rs. 17,140-50 and prayed to the Court that the sale may be let aside. He further contended that he is
the person interested in the property since he had already obtained a declaratory decree in his favour in a specific performance suit filed by him
against the mortgagor. His application was mainly contested by the first respondent that the application itself is not maintainable under O. 34, R. 5,
C. P. C., as he is not the defendant in the suit to deposit the money and get the sale set aside. He has no locus standi to file the application as he is
not the judgment debtor. The appellant cannot seek the aid of S. 146, C. P. C, and his petition is not filed under O. 21, R. 89, C.P.C. The decree
for specific performance passed in his favour would not give him any title to the property and his petition should be dismissed.
The only question that was considered by the Court below was whether an application filed by the applicant was maintainable. The learned
Subordinate Judge gave a finding that mere obtaining the decree for specific performance in respect of the suit property would not entitle him to file
this application, and further O. 34, R. 5, C.P.C., applies only to the defendant-judgment debtor and the appellant herein cannot be included in the
definition of the word ""defendant"" in O. 34, R. 5, C. P. C. It gives a privilege to the defendant only to deposit the money before the sale is
confirmed. Therefore his application was dismissed.
Now it is against this order that the petitioner filed this appeal. The question that has to be considered is whether the appellant has got any locus
standi to file this application. In order to answer this question, some dates are relevant both in respect of the mortgage suit and the suit for specific
performance. As previously stated by me. the second respondent filed a suit against respondents 3 and 4 on a. mortgage executed by them, on
26th July 1956. Preliminary decree was passed on 18th September 1956. Final decree was passed on 20th September 1957. In the meantime.
the appellant entered into an agreement to purchase the property subject to the mortgage from the second respondent. Subsequently, he had to file
a suit O. S. No. 167 of 1958 for specific performance against the second respondent and it was decreed in his favour on 31st December 1969.
When the mortgaged properties were brought to sale on 14th September 1960, he deposited a sum of Rs. 1000 and got the sale adjourned to a
subsequent date, that is, 12th October 1960. When the properties were brought to sale once again, he deposited Rs. 4000 and got it adjourned to
9th November 1960. Subsequently he did not pay the balance of the mortgage decree amount. Therefore the second respondent brought the
mortgaged property for sale and it was purchased by the first respondent on 19th November, 1960 for a sum of Rs. 16,000. The appellant long
after the sale filed an application on 31st July, 1961, under O. 34, R. 5, C. P. C., by depositing the balance amount into the Court. Admittedly, this
application was filed more than 30 days. This application is barred by limitation. Nevertheless the appellant seeks the aid of S. 146, C. P. C., as
representative of the judgment-debtor.
It is in these circumstances that I have to consider whether he is the representative of the judgment-debtor, whether he has got any interest in the
suit property and whether he is bound in law to deposit the decree amount. Learned Counsel for the appellant contended before me that he is a
representative of the judgment debtor and as such, he is entitled to file an application for setting aside the sale by depositing the decree amount into
Court since he is interested in the property. He brought to my notice a ruling of the Privy Council reported in AIR 1937 260 (Privy Council) where
the mortgagor transfers the mortgaged property pending the suit for foreclosure on the mortgage they held that the transferee took the property
from the mortgagor pendente lite and therefore must be treated as his representative in interest. He is bound by the result of the decree and the
decree-holder is entitled to execute the decree against him who is a representative of their judgment debtor.
Similarly Satyanarayana Rao, J. in S. Subba Rao Vs. Mangavalli Venkataseshacharlu and Another, held :
Where a property was sold and was purchased by A in execution of his decree during the pendency of a mortgage suit in respect of that property
and A obtained possession thereof and the mortgagee in execution of the decree made in his favour in that suit purchased the property himself. It
was held : A having purchased the property pendente lite must be treated as a representative-in-interest of the judgment debtor, and, as such
bound by the mortgage decree, and therefore, a petition by the mortgagee decree-holder for possession of the property purchased by him was
maintainable against A.
Their Lordships of the Supreme Court in Sailabala v. Nirmala Sundari A. I. R. 1958 S. C. 395 held that S. 146, C. P. C., is wide enough to
include cases of devolution and assignment mentioned in O. 22, R. 10.
In In Re: G. Vasantha Pai, Subrahmanyam, J. held :
Order 34, R. 5 C. P. C., read with S. 146 of the Code would enable a purchase of the hypotheca, from the defendant during the pendency of a
suit to enforce the mortgage, to make a deposit of the money as provided under the rule, though a person who does not derive title from the
judgment-debtor cannot claim the benefit of the said rule.
Therefore, the appellant contended before me that he is entitled to deposit the money as a representative of the judgment debtor in the execution
proceedings to set aside the sale as the sale is not confirmed. But the learned Counsel for the respondent contended before me that the appellant is
not a representative in interest of the judgment debtor as he did not possess any right in the property. In all the cases cited by the learned Counsel
for the appellant properties passed to the persons who are the representatives in interest of the judgment debtor and possession was with them.
But in the instant case, he did not possess any title to the property nor could he claim any possession to the suit property. Mere obtaining a decree
for specific performance in respect of the suit property, would not clothe with the title to the suit property: In Mahadeo v. Vasudev Kikikar I. L.R.
53 Bom. 181 at 183 while their Lordships considered the effect of a decree, for specific performance against the vendor, they observed in the
following words :
He has a personal right against his vendor or the assignee with notice of his vendor to compel the latter by a suit for specific performance to
perform his contract; but he has no direct right over the land.
The above principle laid by the Bombay High Court was followed in a case reported in this Court in Subbareddi v. Vasireddi Jayaramayya AIR
1923 Mad. 659=17 L.W. 680, where Odgers, J. held that the mere agreement of sale creates no interest as it conveyed no interest in real
property within S. 54 of the Transfer of Property Act, to the respondents who claim to be trustees under that agreement for the benefit of the
creditors and persons entitled under a contract for the sale of immoveable properties are not persons entitled to apply under S. 310 (a) C. P. C.,
corresponding to the present O. 21, R. 89.
In Nasiruddin Haider Vs. Hakim Muhammad Tahir and Others, a person who had obtained a decree for specific performance for sale is not
entitled to set aside the sale under O. 21, R. 89 C. P. C., since he is not entitled to the suit property as he had not executed his decree for specific
performance against his vendor. A person who obtained a decree for specific performance has got something little bit better than a contract. He
obtained an order from the Court that he is entitled to have his contract specifically performed. There was an order of Court to perform that
contract specifically. If he has not executed a decree for specific performance or if the judgment debtor did not comply with an order of the Court,
it cannot be said that he had title to the property because the conveyance would only give him his title. It is a fundamental principle in English law
that a person holding a contract has an equity or equitable right but not a title in law though that principle is not applicable in this country. The
Transfer of Property Act is quite clear on the point. The contract does not give him any interest in the land and the only effect of the judgment of
the specific performance suit is that it does not give him title. It gives a right of execution to specific performance of the contract. Therefore, if he
had no title to the property, he had no right to deposit the money under O. 21, R. 89 C. P C. Again in Inayat Ullah v. Khalli Ullah Khan ILR 1938
All. 677 at 679 the Bench consisting of Iqbal Ahmed and Harries, JJ. held :
A decree for specific performance only declares the right of the decree-holder to have a transfer executed in his favour of the property covered by
the decree. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property, the decree-
holder has to proceed in execution in accordance with the provisions of O. 21, of the Code. So long as the sale deed is not executed in favour of
the decree-holder, either by the defendant in the suit or by the Court, the title to the property remains vested in the defendant and till the execution
of the sale deed the decree-holder has no right to the possession of property. It is only the execution of the sale deed that transfers title to the
property.
After reviewing the entire case law on this subject, it is quite clear that the appellant though he obtained a decree for specific performance against
his vendor did not execute the decree. He did not obtain a conveyance from his vendor. He has no title to the property. When once I come to the
conclusion that he did not possess any title in the suit property, he can have no interest to entitle him under O. 21, R. 89 to deposit the decree
amount and to have the sale set aside. Further the word "" defendant "" in O. 34, R. 5 would only mean a defendant in the suit and does not mean
anybody who has an interest in equity of redemption Vide Tkakorbai v. Central Bank of India. Further, this application under O. 21 , R. 89 is itself
barred by limitation and secondly even assuming that he can make use of S. 146, C. P. C., he is not a representative in interest of the judgment-
debtor because he did not possess any interest possessed by the defendant or judgment-debtor in the suit property. In those circumstances, the
finding of the Court below is correct that he is not entitled to have the sale set aside by depositing the decree amount into Court. In those
circumstances, this appeal has to be dismissed, and is hereby dismissed, but there will be no order as to costs.