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Madras High Court
Annamalai Velan And Anr. vs Murugappa Velan And Eighty-Two … on 27 January, 1914
Equivalent citations: (1915) ILR 38 Mad 837
Author: S Ayyar
Bench: S Ayyar, Spencer


JUDGMENT

Sadasiva Ayyar, J.

1. The plaintiffs are the appellants in this Second Appeal. The suit was brought for the cancellation of a rent-sale held at the instance of a receiver who represented the melvaramdars of certain lands. The receiver as such melvaramdar became the landlord of the plaintiffs and of the first defendant who are brothers. The rent-sale was held on the footing that the first defendant was the tenant owning the kudivaram right and after notice to him under Section 39 of the Bent Recovery Act VIII of 1865 (now superseded). The plaintiffs’ contention is that the first defendant did not own the kudivaram right on the date of notice under Section 39, that in a partition effected between the plaintiffs and the first defendant about 1890, the plaint land and trees fell to the plaintiffs’ share, that the proceedings connected with that rent-sale cannot bind the plaintiffs as they were not made parties to the said sale proceedings and they were not given notice under Section 39 (Rent Recovery Act,) and the notice given to the first defend ant will not bind them, and that “there was no muchilika, attachment or sale proclamation with regard to plaint lands and trees.” In the suit, they joined about 80 persons as defendants, the defendants Nos. 3 to 80 being the melvaramdars of the village in which the plaint lands are situated. One of the defences raised by these melvaramdars was that as a receiver had been appointed (Original Suit No. 8 of 1901 on the tile of the Subordinate Judge’s Court of Tanjore) to be in possession of the entire melvaram rights of all the melvaramdars till the disposal of that suit and as it was that receiver who gave the notice under Section 39 of the Rent Recovery Act and brought the plaint properties to the sale in auction in which the second defendant purchased them, the said receiver was a necessary party-defendant to the suit and the suit was bad for non-joinder of that necessary party. The District Munsif overruled this contention on the ground that the receiver had no personal interest in the subject-matter of the present suit and the melvaramdars (defendants Nos. 3 to 80) and the purchaser, second defendant, were the persons directly interested. OP appeal, the District Court of Tanjore held that the receiver was a necessary party. Its reasons are “that a receiver’s acts are not necessarily or probably for the benefit of each of the parties to the proceedings, that he is not the representative of any or all of them, but of the Court and of the estate, the ownership of which is uncertain; that the object of his appointment is to provide a provisional representative of the estate, who can do legal acts without the question of title in dispute arising; and this object would be frustrated, if a plaintiff would go behind him and implead the contesting melvaramdars themselves,” The District Court therefore remanded the suit to the District Munsif’s Court for re-trial after giving the plaintiffs an opportunity to make the receiver a supplemental defendant. When the receiver was accordingly made a supplemental defendant, more than one year had elapsed from the date of the rent-sale and the District Munsif dismissed the whole suit as barred by limitation as the necessary party, the defendant-receiver was impleaded only after the period of one year prescribed by Article 12(b) of the Limitation Act. This second decision of the District Munsifs Court dismissing the suit as barred by limitation was confirmed by the District Judge on appeal. In Second Appeal before us, various contentions have been raised, but we think it is necessary to set out only the sixth and eighth grounds of the appeal memorandum which are as follows:

6. The receiver being an unnecessary party, the lower Appellate Court has erred in directing the plaintiff to add him as a party and then to dismiss the whole suit on the ground of limitation.

8. The lower Appellate Court has erred in remanding the case. It should have disposed of the case on the merits.

2. We are of opinion that none of the melvaramdars not the receiver is it necessary party to this suit to set aside a rent-sale and that it is only the second defendant the purchaser at the rent-sale who is a necessary party defendant. A landlord who under the Rent Recovery Act, VIII of 1865, takes steps by the issue of notice under Section 39 and otherwise to bring th.9 tenant’s property to sale is not a party to the sale. Nor is such a sale held in execution of any decree to which he is a party. He has only to send a duplicate of the notice under Section 39 to the Collector with an endorsement stating the date of service of the notice and the mode of service effected and the Collector proceeds to sell the property under Sections 40, 18, 33 and 35 of the Rent Recovery Act (Section 40 making the other sections which directly relate to the mode of sale of movable properties also apply to the mode of sale of immovable properties). There is no provision in the Act indicating that the landlord who brings about an illegal or irregular sale is a necessary party to a suit brought in the Civil Court to have the sale set aside. Under Order I, Rule 3, Civil Procedure Code, the proper persons to he joined as defendants in a suit are those “against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative.” When the sale of the kudivaram right in a land takes place under the auspices of the Collector under the Rent Recovery Act and the tenant (the owner of the kudivaram right) brings a suit to set aside that sale, the relief (the granting of which establishes or re-establishes the title of the plaintiff when so granted) will affect only the purchaser at the rant-sale and no other person; and hence the right to such relief exists only against the rent auction-purchaser, in the case of a sale under the Civil Procedure Code in execution of a decree, the setting aside of the sale will affect the decree-holder also, as under Order XXI, Rule 93, if the sale is set aside, he cannot take or retain the purchase money towards his decree amount, and he will be further delayed in obtaining the fruits of his decree. Hence to proceedings under Order XXI, Rule 90, he has been held to be a necessary party. Sales under the Rent Recovery Act, however, stand on a different footing. In Bal Mokoond Lall v. Jirjudhun Roy (1888) I.L.R., 9 Calc., 271, the question was considered whether in a suit to set aside oven a revenue sale, the Collector was a necessary party under the Bengal Act XI of 1859, We shall quote the following paragraphs of Mr. Justice Mitter’s judgment (which on this point was concurred in fully by Norris, J.): “Then a question was raised to the effect that the plaintiff was bound to make the Secretary of State a party to this suit, and in support of the appellant’s contention upon this point our attention was drawn to the provisions of Section 35, Act XI of 1859. That section says: ‘In the event of a sale being annulled by a final decree of a Court of Justice, and the former proprietor being restored to possession, the purchase money shall he refunded to the purchaser by Government, together with interest at the highest rate of the current public securities,’ Comparing this section with the analogous section in Regulation VIII of 1819, viz., Section 14, which is to the effect that ‘the purchaser shall he made a party in such suits, and upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss, at the charge of the Zamindar or person at whose suit the sale may have been made,’ it appears to me that this Section 35 by itself does not afford any ground for the contention that the Secretary of State was a necessary party to the suit, It merely provides that in the event of a sale being annulled by a final decree of a Court of Justice, and the former proprietor being restored to possession, the purchase money shall be refunded to the purchaser by Government, together with interest, at the highest rate of the current public securities. But although it appears to me to he clear that Section 35 does not afford any support to the contention raised before us, yet it is by no means clear that the Government was not interested in the question raised in the suit, because, if the sale be set aside, the collector will have to proceed de novo in the matter for the realization of the arrears of revenue. The Government, therefore, have such interest in the suit as would, on’ their application, entitle them to be made a party to it.” Thus it was held that the Secretary of Stats is not a necessary party to the suit even if the Government would have to refund the purchase money if the sale was set aside. But as the Government was interested in the result of the suit by reason of the provision that the Government should refund the purchase money in the event of the sale being set aside, the Government might on their application be made a party to the suit. This view of the position of a person who brings about and conducts a revenue sale under the Bengal Act applies, it seems to us, a fortiori to the case of the person who brings about and conducts a rent-sale under the Act VIII of 1865. In Balkishen Das v. Simpson (1898) I.L.R., 25 Calc., 833, their Lordships of the Privy Council had to deal with an objection raised by the respondent that the Secretary of State for India had not been joined as a party to the appeal before them in a case which related to the setting aside of a revenue sale. Their Lordships say that “in their opinion the position of the Indian Secretary, in cases like the present:, is correctly explained by Mr. Justice Mitter in Bal Mokoond Lall v. Jirjudhun Roy ((1888) I.L.R., 9 Calc., 271.”It is clear to us that but for the provision in Section 315, Civil Procedure Code (Order XXI, Rule 93) even the decree-bolder will not be a necessary party to an application under Order XXI, Rule 90, or Order XXI, Rule 91, to set aside a Court auction-sale and because the general rule of caveat emptor was relaxed in favour of a Court auction-purchaser in Order XXI, Rule 91, and Order XXI, Rule 93, the decree-holder is a necessary party in applications to set aside Court auction-sales. The order of remand, therefore by the District Court cannot he supported but it need not be set aside at this stage. Neither the melvaramdars nor the receiver being necessary parties to the present suit, the addition of the receiver merely for the purpose of safeguarding their interests (if any), will not make the provisions of Section 22 of the Limitation Act applicable-see Guruvayya v. Dattatraya (1904) I.L.R., 28 Bom., 11. And the suit brought within the limitation period (assuming as against the plaintiffs, the suit has to be brought within one year after the sale) against the only necessary party-defendant (namely, the purchaser, second defendant) is not barred by limitation. We therefore sot aside the decisions of the lower Courts dismissing the suit as barred and remand the suit to the Court of first Instance to decide the case on the issues Nos. 2 to 6 and any other questions which might arise other than those dealt with by us, that is, other than the question of limitation and the question of the receiver being a necessary party. None of the party defendants need, however, be struck off the record. The District Munsif will, in disposing of the case de nova, give findings on the merits of the case also (unless the suit is dismissed for default or is withdrawn or is compromised) in order to prevent further demands in this suit which is nearly nine years old already. All parties shall be at liberty to adduce evidence. Costs hitherto will abide the result of the fresh decision of the District Munsif.


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