GULAM RASOOL SAHEB Vs. HAMIDA BIBI

JUDGEMENT

(1.) This is an appeal against the order of the learned District Judge of Trichinopoly, who on appeal from the order of the Subordinate Judge allowed the plaintiff's application for removal of obstruction by the appellant in this civil miscellaneous second appeal and delivery of possession.

(2.) The property in dispute and other properties belonged to one Haji Muhammad Ibrahim who died on 17 December, 1912. After his death, there was a partition on the 15 January, 1916, between the two sons of Haji Muhammad, i.e., Peer Muhammad and Sulaiman and in that partition Peer Muhammad got for his share the suit property. On the 23 June, 1921, Peer Muhammad settled the property now in dispute on his wife Rahiman Bibi. On the nth September, 1922, Rahiman Bibi mortgaged the property to one Sikkandar, the father pf the present appellant. In the year 1924, a suit for partition was filed by the two -daughters of Haji Muhammad impleading the other sharers as defendants and Rahiman Bibi was impleaded as the sixth defendant. There was a preliminary decree in that suit on the 15 August, 1929, which was confirmed on appeal on the 4 April, 1934, and a final decree was passed on the 6 January, 1937. While these partition proceedings were going on, Sikkandar, the mortgagee, instituted the suit (O.S. No. 135 of 1929) on foot of his mortgage to which he impleaded as parties the original mortgagor and also the heirs of Haji Muhammad who were subsequently given up as they claimed the suit property by a title paramount. There was a decree, however, against the mortgagor and ultimately after a final decree, the property was sold and was purchased on the 2nd November, 1932, by the decree-holder, the mortgagee, and the property was duly delivered to him through Court on the 14 October, 1933.

(3.) After all this, the person to whose share the property now in dispute fell in the partition in pursuance of the final decree in O.S. No. 26 of 1925, applied in E.P. No. 414 of 1944 for delivery of possession. It may be mentioned that in the partition in pursuance of the final decree in the present suit, the property was not allotted to Rahiman Bibi but to some other sharer. When this Execution Petition No. 414 of 1944 was filed and the petitioner went to obtain delivery of possession of the property, there was obstruction by the present appellant to the delivery with the result the respondent filed an application in the Subordinate Judge's Court for removing the obstruction and for delivery of possession of the property freed from the obstruction of the appellant. The petition was filed under Section 47, Civil Procedure Code. The present appellant, who was the respondent in the counter-statement filed by him raised various contentions the chief of which was that the application was not maintainable under Section 47, Civil Procedure Code, as he was not a party to the suit O.S. No. 26 of 1925, in which a partition decree was passed. This objection was upheld by the learned Subordinate Judge and the application was dismissed. On appeal the learned District Judge reversed the decision of the Subordinate Judge and allowed the petition. Hence this second appeal.