Thandavaraya Pillai vs Kuppuswami Udayar on 25 March, 1926

Madras High Court
Thandavaraya Pillai vs Kuppuswami Udayar on 25 March, 1926
Equivalent citations: 97 Ind Cas 605
Author: M Nair
Bench: M Nair


Madhavan Nair, J.

1. The mortgagee-decree-holder-purchaser is the appellant. The appeal arises out of an application under Order XXI, Rule 100 made by the respondent for being put into possession, as he was wrongfully dispossessed by the decree-holder in execution of his mortgage decree. The appeal relates only to properties covered by Schedules C and D to the decree. These properties were mortgaged to the decree-holder by defendants Nos. 3, 4 and 5 who were members of a joint undivided family. Defendants Nos. 2 and 6 had sold these properties prior to the mortgage to the respondent who was the 7th defendant in the suit. It was decided in the mortgage suit that the decree-holder was entitled to get the shares only of defendants Nos. 3, 4 and 5 in the plaint 0 and D schedule pro perties. As a matter of fact the sale certificate issued to him covered more than what he was rightly entitled to under the judgment and decree and in execution of that decree he dispossessed the present respondent. It is clear that under the decree the decree-holder is not entitled to dispossess the respondent and so, the lower Courts allowed the petition filed by the respondent under Order XXI, Rule 100. It is now contended that since the appellant is entitled to a portion of these properties the question should have been considered by the lower Court as to what portion he was entitled to get and it is only after such a decision that the prayer of the respondent should have been granted. I agree with the lower Court in holding that the legitimate scope of the application under Order XXI, Rule 100, does not necessitate the consideration of the question now raised by the appellant. I am inclined to think that the appellant has to work out his rights by a suit for partition. However that might be, it is clear that on the respondent’s application which is of a restricted nature, the Courts cannot go into questions raised by the appellant which would necessitate an enquiry into the equities of the case. I think the lower Court’s order dismissing the request of the appellant to have his claim for a portion of the property considered in the course of the present application is right and this appeal should be dismissed.

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