Nachimuthu Gounder vs Avalnaickenpatti Co-operative Society and Another

R. Sadasivam, J.—Petitioner, Nachimuthu Gounder, is the plaintiff in O.S. No. 999 of 1967, on the file of the District Munsif''s Court,

Namakkal, and he seeks to revise the order of the District Munsif that he should sue to set aside the sale held under the Co-operative Societies

Act in his favour before he can claim relief in the suit and pay proper Court-fee for the same u/s 40(1) of the Madras Court-fees and Suits

Valuation Act, 1955.

The first respondent Society obtained a decree against the second respondent, a member of the Society on a mortgage executed by him and

brought the hypo-theca to sale under the provisions of the Madras Co-operative Societies Act. The petitioner was the auction-purchaser in the

said sale. But, in a subsequent litigation with regard to the property, it is found that the second respondent owned only the southern half of the

property known as Varadapillai Thottam, whereas what was mortgaged and brought to sale was the northern half belonging to a third party,

Kondama Naicken. Under such circumstances, if the sale had been held by a Court, the purchaser could have moved the Court under Order 21,

Rule 91, Civil Procedure Code, to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold. There is

no similar provision giving a summary remedy to an auction-purchaser in a sale held under the provisions of the Madras Co-operative Societies

Act. But, as held in the Full Bench decision in V. Macha Koundan Vs. V.K. Kottora Koundan, , an auction-purchaser, who was deprived of his

property, had his remedy by way of separate suit.

The first respondent Society had the balance of the sale price of Rs. 3,202-02 after the decree in its favour was satisfied. The petitioner filed

O.S. No. 219 of 1966 on the file of the lower Court against the respondents and obtained a decree in respect of the said sum of Rs. 3,202-02, on

the ground that the sale was void. He has subsequently filed the present suit to recover the balance of sale consideration paid by him, namely, Rs.

2,047-98.

The learned District Munsif has observed that the petitioner has not produced the decree and judgment in O.S. No. 219 of 1966 on the file of

the District Munsif''s Court, Namakkal, to show that there was a declaration that the auction sale in his favour was void, as pleaded in the plaint.

O.S. No. 219 of 1966 on the file of the District Munsif''s Court, Namakkal, could not have been decreed, unless the sale in favour of the petitioner

is held to be void, and the decision is binding on the parties, to the present suit.

On the averments made in the present plaint, the Court-fee paid is correct. Even assuming for the purpose of argument that there was no

decision in the prior suit, O.S. No. 219 of 1966 on the file of the District Munsif''s Court, Namakkal, that the sale in favour of the petitioner is

void, the petitioner cannot ask for setting aside the sale certificate issued under the Co-operative Societies Act. In Govindarajulu v. The North

Vellore Thottapalayam Town Co-operative Bank (1951) 1 M.L.J. 192, Balakrishna Ayyar, J., held that the sale certificate in favour of a

purchaser was not a document of title securing the property which the plaintiff was bound to sue to set aside. It is clear from the decision that the

sale certificate does no more than create statutory evidence of transfer. The plaintiff in that case asked for relief in respect of the property covered

by the sale certificate and it was therefore held that the plaintiff could not get the relief he wanted unless he obtained a declaration that the sale was

inoperative and not binding on him. Even assuming that the present suit implies a prayer for a declaration that the sale in favour of the petitioner is

void and that he is, therefore, entitled to the amount claimed in the suit, the claim would fall u/s 25(d) of the Madras Court Fees and Suits

Valuation Act, 1955, and the Court-fee paid in this suit is correct.

For the foregoing reasons, I find that the order of the District Munsif directing the petitioner to add a prayer to set aside the sale and to pay

Court-fee thereon is not correct and it is set aside. There will be no order as to costs.