Thangammal and Others vs Murugammal and Others

This second appeal raises an interesting question in the application of Section 28 of the Presidency Small Cause Courts Act, 1882. Defendants

3 to 5 are appellants in the Second Appeal. The suit property is the superstructure of premises in Jagannathapuram, Second Street, Chetput,

Madras. Defendants 2 and 3 in the suit instituted S. C. No. 1560 of 1940 on the file of the Court of Small Causes, Madras, for the ground rent

due by one Ponnuswami, the then owner of the superstructure, and, in pursuance of the decree passed by the Court of Small Causes on 28-4-

1940, they attached the superstructure and put it up for sale u/s 28 of the Act. The superstructure was purchased by one Jayaram Naidu and a

sale certificate Ex. B-11 dated 14-11-1942 was issued in his favour.

Subsequently in May, 1945 Jayaram Naidu sold the superstructure to the present 1st defendant P.S. Sarma. The 1st defendant, for securing

possession of the property instituted the suit O. S. No. 1994 of 1954 on the file of the City Civil Court, Madras, against Ponnuswami''s son

Muniswami alleging that Muniswami was continuing in possession after the death of his father Ponnuswami. Muniswami resisted the suit. But his

defences were overruled and the suit ended in a decree for possession of the superstructure in favour of the plaintiff in that suit, the present 1st

defendant. The execution of the decree was stayed for one year.

Thereafter, when proceedings in execution were taken by the present 1st defendant, the plaintiffs in the suit out of which the second appeal arises

offered obstruction. The 1st plaintiff is the wife of Muniswami and plaintiffs are his sons, that is, the grandsons of Ponnuswami. They asserted their

possession of the superstructure and claimed title to the same by virtue of registered settlement deed executed in their favour by Ponnuswami on

28-1-1944. An application for removal of obstruction filed by P.S. Sarma, was allowed on 13-9-1958 and it is to set aside the order directing the

removal of obstruction filed and to declare their title to the superstructure that the present suit was filed by the plaintiffs. Originally Sarma was the

party defendant. The 2nd defendant came on record as purchaser of the superstructure from Sarma on 6-2-1959. On the death of the 2nd

defendant his legal representatives were brought on record as defendants 3 to 5.

The Courts below have concurrently held that the plaintiffs cannot claim any title to the property under the settlement deed. Ponnuswami had

lost title to the suit property by the Court sale evidenced by the sale certificate Ex. B-11 even in 1942. He had no right, title or interest in the

property subsequent to the Court sale, to pass title to the plaintiffs. The trial Court examined the question of title to the land, though that was not in

issue in the proceedings. The summary order whose validity was impugned in the suit, related only to the superstructure. The trial Court, on its view

of the law and having regard to the finding as to the invalidity of the settlement deed, dismissed the suit with costs. On appeal, the learned Addl.

City Civil Judge has decreed the suit as prayed for with costs, making it clear that the adjudication is only in respect of the superstructure and not in

respect of the site on which the superstructure stands.

The substantial claim of the plaintiff''s is that the title of the 1st defendant to the superstructure had become extinguished by the law of limitation,

before possession was attempted to be taken from them. It was contended for the plaintiffs that what was sold in the court auction to the auction-

purchaser Jayaram Naidu was moveable property, the superstructure. As moveable property, the right to secure possession thereof must be

exercised within three years of vesting of title in the property. In the present case, so far as the plaintiffs are concerned, they were not parties to the

suit O. S. No. 1994 of 1954 instituted by the present 1st defendant. The decree in that suit was against Muniswami. The present plaintiffs claim

and assert title to the suit property independent of Muniswami. The submission on behalf of the plaintiffs was that it may be that they have no legal

title to the superstructure under the settlement deed, but that they have perfected their title to the same by prescription, the 1st defendant''s right to

claim possession thereof having become barred by limitation. It was also contended that the decree in O. S. No. 1994 of 1954 cannot be

executed against the plaintiffs, they being not parties to the same. The learned Additional City Civil Judge accepted the contentions of the plaintiffs

and decreed the suit.

Of course, what was sold in execution of the decree in S. C. No. 1560 of 1940 was the superstructure on the land. Both under the Transfer of

Property Act and the General Clauses Act, as a thing attached to earth the superstructure would be Immovable property. But the Presidency Small

Cause Courts Act makes a departure and statutorily requires the superstructures to be regarded as move-able property. Section 28 of the Act

which provides for it runs as follows:--

When the judgment-debtor under any decree of the Small Cause Court is a tenant of- immovable property, anything attached to such property

and which he might before the termination of his tenancy lawfully remove without the permission of his landlord, shall, for the purpose of the

execution of such decree and for the purpose of deciding all questions arising in the execution of such decree, be deemed to be movable property

and may, if sold in such execution, be severed by the purchaser, but shall not be removed by him from the property until he has done to the

property whatever the judgment-debtor would have been bound to do to it if he had removed such thing.

Section 28 of the Act clearly provides that for the purpose of execution under any decree of the Small Cause Court, the superstructure of a tenant

of immoveablc property shall be deemed to be moveable property. It has to be attached and sold as moveable property and all questions arising to

the same in the execution of the decree of the Small Cause Court have to be disposed of as if it is moveable property. Certain restrictions are

imposed with reference to severance of the property on the purchase in execution.

Rules have been framed under the Act called the Rules of the Presidency Court of Small Causes 1912 on the model of the Rules in the Civil

Procedure Code. Several sections in the CPC are made applicable to the Act. Order XXI, Rule 5 of the Rules states that every application for the

execution of a decree shall contain inter alia the mode in which the assistance of the Court is required: whether (i) by the delivery of any property

specifically decreed; (ii) by the attachment, and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of

any person; (iv) by the appointment of a receiver; and (v) otherwise, as the nature of the relief may require.

Order XXI, Rule 41 provides for attachment of the property mentioned in Section 28, Order XXI, Rule 63 provides that, in the case of the

property mentioned in Section 28 of the principal Act, the Court may direct the sale to be held at or near the said property, or at such other place

as to the Court may seem fit, Order XXI, Rule 68 provides that, where the property sold is moveable property of which actual seizure has been

made, it shall be delivered to the purchaser. Order XXI, Rule 70 states that, in the case of any moveable property not hereinbefore provided for,

the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

In the present case, the sale certificate Ex. B-11 has been issued under Order XXI, Rule 70 declaring the purchaser as the highest bidder and

stating that the property has vested in him. What is contended for the defendants is that it may be that, for the purpose of attachment and sale, the.

Act has provided for the superstructure being treated as moveable property, but that it does not lose its character as Immovable property under

the Transfer of Property Act and the General Clauses Act. Once the superstructure has become vested in the purchaser, it is said, the process of

execution comes to an end and thereafter the superstructure must be deemed to be irnmoveable property. Learned counsel would contend that,

being irnmoveable property, it is perfectly open to the purchaser to sue for possession of the property within 12 years of suit under Article 137 or

Article 138 of the Limitation Act.

The learned Additional City Civil Judge has not accepted this contention and he points out that Articles 137 and 138 deal with suits by a purchaser

at a sale in execution of a decree for possession of Immovable property. The present 1st defendant claims as a purchaser in execution of moveable

property and not Immovable property. Mr. Amudhachari raises the question that, if the superstructure is deemed to be moveable property, there is

no provision under the Presidency Small Cause Courts Act or under the Rules of the Presidency Court of Small Causes to secure possession of

the same. I do not see any difficulty in the matter.

It is not in dispute that suits for possession of moveable property are cognizable by the Presidency Small Cause Courts. The decision of this Court

in Sadaiammal Vs. Angammal and Another, though not directly in point, clearly enunciates the scope and ambit of the deeming provision u/s 28.

In that case a decree-holder in a small cause suit sought to attach the superstructure which the defendant, a tenant, would be entitled to remove

without the permission of the landlord before the termination of the tenancy. A third party preferred a claim to it which was allowed. A suit was

filed in the City Civil Court to set aside the order on the claim petition. A Division Bench of this Court held that the superstructure must be deemed

to be moveable property falling within Section 28 of the Presidency Small Cause Courts Act, and that the City Civil Court has no jurisdiction to try

the suit, as the question arose in execution of the Small Cause Court decree. It was pointed out that there is no distinction between questions

arising ''in'' execution and questions arising ''out of'' execution of a Small Cause Court decree. In the light of the decision, to accept the argument of

learned counsel for the defendant would be to lead to anomalous results. On the decision, under a decree of Small Cause Court the superstructure

will be moveable property and all the questions arising in respect of them will be dealt with as relating to moveable property. If a claim is allowed in

execution of the Small Cause Court decree, the party against whom the adverse order is passed has necessarily to file a claim suit in the Court of

Small Causes. Now, what is contended for the appellant is that, for the purpose of filing a suit for possession of property by the auction-purchaser,

the superstructure should be treated as Immovable property. The right to possession clearly arises out of vesting of the property in execution

proceedings.

Section 28 of the Act enacts that, for the purpose of the execution of a decree of the Small Cause Court and for the purpose of deciding all

questions arising in the execution of the decree, anything attached to the Immovable property shall be deemed to be moveable property and this

Court in the aforesaid case held that there is no distinction between questions arising ''in'' execution and questions arising ''out of execution of a

Small Causa Court decree. If the property is moveable property, either Article 181 or Article 49 may be applicable. But, whatever Article it may

be, the period within which action should be taken to secure possession is three years. When the Legislature provides that something shall be

deemed to be other than what it is, having deemed it so, one cannot stop half way, when it comes to the inevitable corollaries of that state of the

things. The deeming shall be continued to the realisation of the purpose for which it is to be so deemed. Clearly vesting of the property in the

purchaser is not the be all and end all of the execution proceedings. He has purchased the superstructure in execution of the Small Cause Court

decree and it is deemed to be moveable property, because before the termination of his tenancy the tenant may lawfully remove the superstructure

without the permission of his landlord. Section 28 provides that the property sold in execution may be severed by the purchaser, but that it shall not

be removed from the Immovable property until he has done to the property whatever the judgment-debtor would have been bound to do to it if he

had removed such thing. The section contemplates not only attachment and sale but also severance of the property by the purchaser. The deeming

provision or fiction continues till the thing is severed and possession is secured by the purchaser. It follows that the superstructure sold u/s 28 of the

Act is moveable property and the auction purchaser has title to the superstructure not as Immovable property but as moveable property. As the

plaintiffs were not parties to the suit O. S. No. 1994 of 1954, it is unnecessary to say anything about the validity of the proceedings therein.

As possession of the property has not been taken within three years of the sale certificate Ex. B-11 dated 14-11-1942. the claim got barred by

limitation. As the plaintiffs were not bound by the decree in O. S. No. 1994 of 1954 their objection in execution was valid, for long before that the

title of the purchaser had become extinguished. When the purchaser 1st defendant had lost his title the 2nd defendant who purchased the property

from the first defendant got ho title to it. The plaintiffs have been In possession of the property for years prior to their offering obstruction. Quite

properly the lower appellate Court has held that the obstruction offered by the plaintiffs was justified and the order of the executing Court directing

the removal of the obstruction was liable to be set aside.

In the result, the second appeal fails and is dismissed with costs.

No leave.