IRULAYEE AMMAL Vs. T.V. MURUGIAH AND ORS.

JUDGEMENT

(1.) THIS is an appeal against the order in E. A. No. 627 of 1946 in E. P. No. 138 of 1943 in O. S. No. 20 of 1936, on the file of the Subordinate Judge's Court, Madura.

(2.) THE circumstances under which this appeal is preferred are these. O. S. No. 20 of 1936 was filed by the plaintiff, respondent 2 herein, for recovery of the amount due under a mortgage executed by defendants 1 to 4 in the suit. Defendants 5 to 8 and 9 to 12 are purchasers of portions of the hypotheca. Defendant 13 is a purchaser of three houses from defendant 9 and defendant 14 is a purchaser of one of the three houses from defendant 13. Defendant 29, the contesting respondent 1 in this appeal, is the legal representative of defendant 14. On 13th September 1937, a preliminary mortgage decree was passed in O. S. No. 20 of 1936. Petitions for scaling down the debt under Madras Act IV [4] of 1938 were filed by the mortgagors, defendants 1 to 4 and the purchasers defendants 5 to 8 and defendants 9 to 12. The applications of the mortgagors and of defendants 9 to 12 were allowed. On the ground that defendants 5 to 8 were not agriculturists their applications were rejected. With regard to the defendants whose applications were allowed, the decree amount was soiled down to Rs. 36,000. Defendants 5 to 8 appealed and the appeal was allowed by the High Court, so that after this appeal was allowed by the High Court the total amount payable by defendants 1 to 12 was Rs. 36,000. There were other defendants with whom we are not concerned in this appeal and there was a balance amount due under the decree, The scaled down amount of RS. 36,000 was deposited by the mortgagors and others and so far as they were concerned, satisfaction was entered At that time defendant 13 who purchased three houses from defendant 9 did not join in filing the petition for scaling down the debt. Subsequently he filed E. A. No. 91 of 1914 under Order 21, Rule 2, Civil P. C. His application was rejected on 22nd April 1944. He then preferred an appeal to the High Court, C. M. A. No. 410 of 1944. Pending disposal of that appeal, he prayed for stay of execution of E. P. No. 138 of 1943 by the decree -bolder in bringing the properties to sale for the balance of the decree amount. The High Court in C. M. P. No. 3640 Of 1944 passed a conditional order of stay on his (defendant 13's) undertaking to deposit Rs. 300 on or before 14th October 1944. In passing the said conditional order, they limited stay of execution to the pro -parties in the possession of defendant 13. There was thus no stay with regard to the execution as against the property sold to defendant 14 and which was in her possession. The decree -holder therefore executed his decree against this property and on 18th December 1944 this house was brought to sale and the decree -holder purchased the same. The sale was duly confirmed and delivery was effected to him on 20th March 1945. On 8th January 1946 judgment was delivered in C. M. A. No. 410 of 1944 allowing the appeal holding that the decree should be deemed to have been discharged even as against defendant 13 inclusive of defendants 14 and 29. It may be mentioned here that defendant 29 did not take any steps to have the debt scaled down so far as he was concerned nor was he a party to the appeal here. The decree -holder, after getting possession of the property, sold it to the appellant herein on 3rd July 1946. Respondent 1, i.e., defendant 29 taking advantage of the decision of this Court in C. M. A. No. 410 of 1944 put in this petition for redelivery of the house purchased by the decree -holder and sold subsequently to the appellant herein. In the lower Court the petition was filed under Sections 47, 144 and 151 and Order 21, Rule 95, Civil P. C. The lower Court held that Section 144 did not apply but held under Section 151 that respondent 1 was entitled to the benefits of restitution and on the question as to whether it can be allowed against the appellant herein, held that where a party is bound to restore possession his legal representatives or assigns are equally liable. It also held that the principle of Section 52. T. P. Act, applies and that the transfer was affected by lis pendens. Against the said order, the purchaser from the decree -holder who was respondent 2 in the lower Court has filed this appeal.

(3.) THE next and the more important question is whether defendant 29 can dispossess the appellant who was a purchaser from the decree -holder. It was not pleaded in the lower Court that he was not a bona fide purchaser from the decree -holder nor is that fact disputed here. The question therefore is how far the purchase is affected by the order of the High Court in the civil miscellaneous appeal. It may be stated here that at the time the decree -holder brought the property to sale, there was no stay of sale in respect of this house and the decree therefore so far as this property is concerned can validly and legally be executed. The Court therefore had undoubted jurisdiction to sell the property. There was no flaw in the decree so as to fix the purchaser with any notice of such a defect. In such cases, it has been held that the equitable right to set aside such a decree cannot prevail against the rights of the subsequent purchaser for value without notice. In Marimuthu Udayan v. Subbaraya Pillai,, 13 M. L. J. 231, the learned Judges observe at p. 235 :