ANDRU Vs. MOIDU
LAWS(KER)-1964-9-31
HIGH COURT OF KERALA
Decided on September 01,1964

ANDRU Appellant
VERSUS
MOIDU Respondents

JUDGEMENT

- (1.) This appeal by the plaintiff arises in a suit for partition between him and the other cosharers, defendants 1 to 4, who are his brother and sisters, and relates to the contentions of the 6th defendant, who was impleaded as the purchaser of the property sought to be partitioned at a sale held in execution of the decree in O. S. 399 of 1953. Though that decree was only for the sale of the interest of the first defendant in the property, it was not disputed that the rights of all the cosharers were put up for sale and purchased by the 6th defendant, and that he was put in physical possession of the property by the court on the 10th October 1956. According to the plaintiff, the sale in excess of the interest of the first defendant was void and he sued for partition of his 2/7 share of the property. Defendants 2 to 4 supported the plaintiff and themselves sought partition of their shares in this suit itself. The first court passed a preliminary decree for partition declaring the shares of the plaintiff and defendants 2 to 4. In appeal preferred by the 6th defendant, the District Judge dismissed the suit on the ground that it was barred by S.47 of the Civil Procedure Code.
(2.) It was by excessive execution as it is sometimes called, that the sale of the interests of the plaintiffs and defendants 2 to 4 was permitted to take place in O. S. 399 of 1953. The matter in controversy in the suit relates to the execution of that decree and arose between the parties thereto and so the suit is barred by S.47, C.P.C., as held by the Supreme Court in Merla Ramanna v. Nallapparaju ( AIR 1956 SC 87 ). But it was prayed at the hearing of this appeal, that the suit may be treated as a proceeding under S.47 and appropriate reliefs granted. Sub-s.(2) of S.47. C.P.C. does authorise the court in a proper case, subject to any objection as to limitation or jurisdiction, to treat a suit as a proceeding in execution. The case cited is also authority for holding, that where an execution sale is held in excess of what is warranted by the terms of the decree, such sale may be considered to be void and that an application in execution to have it declared so, is governed by Art.181 of the Indian Limitation Act, the starting point of the period of limitation being the date of dispossession. In this case, not only the sale but also the delivery of possession pursuant to it, took place within three years of the institution of the present suit and the court in which it was instituted is competent to entertain the objection to the execution proceedings. There is therefore no objection as to limitation or jurisdiction to treat the present suit as a proceeding in execution. On the ground that the sale in so far as it was in excess of the first defendant's interest in the property was void, I consider that in the interests of justice, this suit may be treated as a proceeding in execution of the decree in O. S. 399 of 1953.
(3.) The next question is whether defendants 2 to 4 are also entitled to share this advantage; I think they are. For one thing, by S.47(2), it is this suit, a partition suit in which the defendants sharers are also in the position of the plaintiff seeking partition, which is to be treated as a proceeding in execution, and not the plaint alone. Moreover, on the authority of the case cited, the sale of the interests of defendants 2 to 4 also was void, as in the case of the sale of the interests of the plaintiff. These defendants also have, by their written statements, sought partition of their shares ignoring the court sale. So this suit has to be treated as a proceeding in execution not only by the plaintiff but also by defendants 2 to 4.;


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