N S KRISHNA IYER Vs. SUBRAMANIA MOOPPANAR

JUDGEMENT

(1.) THIS appeal arises out of proceedings initiated by the appellant for restitution by way of delivery of possession of a house in Madurai town purchased by the first respondent and subsequently transferred by him to the third respondent. The facts are these: The first respondent instituted in the Court of the Subordinate Judge of madurai a suit O. S. No. 37 of 1951 for recovery of a sum of nearly Rs. 9060 as due to him in respect of two loans for Rs. 6000/- and Rs. 2000/ -. A decree for that sum together with subsequent interest was passed on 18-11-1952. The debtor-appellant filed an appeal against the decree to this Court in A. S. No. 174 of 1953.

(2.) IN the meantime the decree of the trial Court was put in execution. The appellant was trying his best to avoid the Court sale of his properties by making payment towards the decree. It is admitted that he had paid on various dates sums amounting to about Rs. 3500/-, but as the amount under the decree then outstanding was considerably more than the sums paid the first respondent pursued the execution petition and brought the debtor's property to sale. At the court sale that took place on 21-6-1954, the decree-holder himself became the purchaser for a sum of Rs. 8015/ -.

(3.) THE appeal by the debtor came up for hearing before this Court subsequent to the date of sale. By its judgment, this court held that the first respondent was entitled to a decree only in respect of the promissory note for Rs. 2000/- and that the larger claim for Rs. 6000/- had to fail. The decree of the lower court was, therefore, varied with the result that the appellant succeeded to a substantial extent in the High Court. Just a few days before this court delivered the judgment, the first respondent transferred the property purchased by him in court auction to the third respondent. The sale deed itself was registered compulsorily long after the decree of this court. The tower court has held that the third respondent is a bona fide purchaser for value, but there can be little doubt that he must have been aware of the pendency of the appeal in this court. The lower courts have not investigated the question as to why even the vendor refused to register the document. It is, however, unnecessary for me at the present stage to consider whether the finding of the lower courts that the third respondent is a bona fide purchaser from the first respondent is well founded or not.