{"id":76861,"date":"1979-03-15T00:00:00","date_gmt":"1979-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vadami-bai-vs-shaik-hussain-and-anr-on-15-march-1979"},"modified":"2018-05-02T15:33:38","modified_gmt":"2018-05-02T10:03:38","slug":"vadami-bai-vs-shaik-hussain-and-anr-on-15-march-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vadami-bai-vs-shaik-hussain-and-anr-on-15-march-1979","title":{"rendered":"Vadami Bai vs Shaik Hussain And Anr. on 15 March, 1979"},"content":{"rendered":"
Andhra High Court<\/div>\n
Vadami Bai vs Shaik Hussain And Anr. on 15 March, 1979<\/div>\n
Equivalent citations: AIR 1980 AP 14<\/div>\n
Author: G Rao<\/div>\n
Bench: G Rao, Amareswari<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Gangadhara Rao, J. <\/p>\n
 1. Sha Nemaji Champalal (1st defendant) obtained an ex  parte decree against the deceased Shaik Subhani, the husband of the 3rd defendant  and father  of defendants 4 to 7 in Small Cause Suit No 729\/1965 on the file of  the District  Munsif’s Court, Guntur.  In execution of that decree, he  brought  the plaint  schedule house for sale in E. P. No. 568\/1969, stating that it  belonged to  the  deceased Sheik Subhani.  The plaintiff filed a Claim Petition  to  27th June, 1970. Both the petitions were adjourned to 30th June, 1970.  On 27th June, 1970,  the  sale  was held and the property was purchased by  Vadambi  Bai  (8th <\/p>\n
defendant).   On  30th June, 1970 both the claim petition  and  the  adjournment petition were dismissed.  Then the plaintiff filed the suit O.S. No. 818\/1970 in the  Court  of the District Munsif.  Guntur, on 17th August, 1970 under  O.  21, Rule  63,  C. P. C. to set aside the order dated 30th June, 1970  in  the  claim petition.   he  did  not make the auction purchaser a party to  that  suit.   He impleaded  only  the decree holder and the judgment debtor.  On  25th  November, 1970   the  sale was confirmed.  On 21st October, 1971 a petition was  filed  to implead the auction purchaser as a defendant to the suit, and it was allowed  on 7th February 1972, subject to the plea of limitation.  In the suit the  District Munsif,  Guntur, held that the plaintiff had title to 2\/7th share in the  plaint schedule property.  Questioning that order the defendants 1 and 8, that is,  the decree  holder and the auction purchaser, filed appeal.  A. S. No. 29\/74 in  the Court  of the District Judge, Guntur.  The learned Judge dismissed  the  appeal.  he held that the suit was a continuation of the claim petition, that the auction purchaser  acquired title to the suit property only when the sale was  confirmed and, therefore, he was not a necessary party to the suit when it was filed.   he also  held  that  the auction purchaser was a  transferee  pendente  lite  under Section  52 of the Transfer of Property Act, and since the judgment  debtor  was already  impleaded  as  a  party  to the suit, there  was  no  question  of  any <\/p>\n
independent  claim against the auction purchaser and hence the suit against  him was not barred by limitation.  hence this second appeal by the auction purchaser (8th defendant).\n<\/p>\n
2.  First,  it  came  up before Muktadar J., for  hearing.   The  learned  Judge referred the matter to a Division Bench.\n<\/p>\n
3.  In  this appeal it is submitted by Sri. P. L. Narasimha Sarma,  the  learned counsel for the appellant, that the confirmation of sale on 25th November,  1970 relates  back  to the date of the sale on 27th June, 1970  and,  therefore,  the auction  purchaser  got  title  to the suit property on  27th  June,  1970  and, consequently,  became  a necessary party to the suit, that the  judgment  debtor cannot  represent  her because he had been divested of his title and  hence  the suit  as  against the auction purchaser is barred by limitation.   Secondly,  he submitted  that  the  finding of the lower Court that the sale  to  the  auction purchaser  was  hit by lis pendents is not correct, for the claim suit  is  not  a continuation  of the claim petition and Section 52 of the Transfer  of  Property Act has no application to court sales.\n<\/p>\n
4. Before we discuss these questions we may add that the question of  limitation does not seem to have been argued before the District Munsif, for his order does not  show  it.   it was only raised in the appeal  before  the  District  Judge, Guntur.\n<\/p>\n
4-A. Order 21, Rule 58, C.P.C., provides for filing claim petitions.  Under Rule 63,  when a claim petition is rejected the party against whom an order  is  made may  institute a suit to establish his right which he claims to the property  in dispute, but subject to the result of such suit, the order shall be  conclusive. that suit has to be filed within one year from the date of the final within  one year  from the date of the final order under Article 98 of the  Limitation  Act, 1963.   Section  21 of that Act provides, that where after the institution  of  a suit, a new plaintiff, or defendant is substituted or added, the suit shall,  as regards  him,  be deemed to have been instituted when he was so  made  a  party; provided  that where the court is satisfied that the omission to include  a  new plaintiff  or defendant was due to a mistake made in good faith, it  may  direct that  the  suit as regards such plaintiff or defendant shall be deemed  to  have been  instituted  on  any earlier date.  order 1,  Rule  10,  C.P.C  proceedings impleaded proper or necessary parties to the suit.\n<\/p>\n
5. To substantiate his first contention, Sri P. L. Narasimha Sarma, relied  upon the  decision  of the Supreme Court in Janak Raj v. Gurdial Singh,<\/a> .   In  that case it was held by the Supreme Court that in view of  Sec.  65, C.P.C.  when  the  sale is confirmed and the sale  certificate  is  granted,  the property shall be deemed to have vested in the purchaser from the time  when  it was   sold and not from the time when the sale became absolute.  The  result  is that  the  purchaser’s title relates back to the date of the sale  and  not  the confirmation  of  sale.  There is no provision in the Code of  Civil  Procedure, 1908, either under O. XXI or elsewhere which provides that the sale is not to be confirmed  if it is found that the decree under which the sale was  ordered  had been  reversed before the confirmation of sale.  it does not seem ever  to  have been doubted that once the sale is confirmed the judgment debtor is not entitled to  get  back the property even if he succeeds thereafter in having  the  decree against him reversed.  The same result will follow even when the reversal of the decree takes place before the confirmation of the sale.\n<\/p>\n
6.  Basing  on this decision, it is argued that in this case when the  sale  was held  on  27th June, 1970.  the auction purchaser became a necessary  party  and since  the  suit  was  filed  by the plaintiff  on  17th  August,  1970  without impleading the auction purchaser as a party and the auction purchaser as a party  and  since  he  was impleaded as a party only on 7th  February  1972,  the  suit against  her is barred by limitation, for it was filed after more than one  year from  the date of the sale.  We are not able to agree with this submission.   In Janak  Raj  v.  Gurdial Singh<\/a> (supra), the Supreme Court was  not  deciding  the question  of limitation for filing the suit under O. 21, Rule 63,  C.P.C.   That was a case where the judgment debtor  did not apply under Section 89 for setting aside  the sale, but applied for setting aside the decree, and after the  decree was reversed an application was filed by the auction purchaser under Rule 92 for confirmation  of  sale.   The question was whether the sale  must  be  confirmed notwithstanding  the reversal of the decree after the sale.  The  Supreme  Court held that the title of the purchaser related back to the date of and, therefore, the  reversal  of the decree after sale had no effect.  That is  different  from saying that if the sale is confirmed after the claim suit is filed, the  auction purchaser  becomes a necessary party to the suit even on the date of  the  sale. The  auction purchaser becomes the owner of the property only when the  sale  is confirmed.  If the said was held,but it was not confirmed before the claim  suit was  filed, he did not acquire any title to the suit property on the  date  when the  claim suit was filed.  At the most he is only a proper party.  It  is  only when the sale was confirmed after the suit was filed he became a necessary party from  that date.  In the case on hand, when the suit was filed on  17th  August, 1970,  the  suit  was filed on 17th August, 1970, the sale  was  not  confirmed.  Therefore,  the auction purchaser was not a necessary party, but only  a  proper party.   As held by the Supreme Court in Devi Das v. Shrishailappa,  failure to join a person who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of  S. 22 of the Indian Limitation Act.  The rule joined as a plaintiff to the suit and is not made party will entail dismissal of the suit, if the suit as regards  him be  barred  by limitation when he joined, has no application to non  joinder  of proper parties.\n<\/p>\n
7. The Patna High Court held in Kunj Behari v. Bendudhar panda (AIr 1942 Pat  185 (2)  ), that limitation bars a suit where the right to sue had  already  accrued before the suit.  But where a suit has already been fought in time and right to sue  some  other  persons  accrues during the pendency of  the  suit,  the  same question  is one of impleading parties who are affected by the doctrine  of  lis pendens.\n<\/p>\n
7-A. Under Order 1, Rule 10, C.P.C. the Court can implead a proper or  necessary party  to the suit at any stage of the proceedings.  We, therefore,  reject  this contention.\n<\/p>\n
7-B. In this case the sale was confirmed on 25th November, 1970, and a  petition was  filed  to implead the auction purchaser on 21st October, 1971, and  it  was allowed  on  7th February, 1972.  Thus, the petition to implead her  was  filed within one year from the date of the confirmation of sale.  the fact that it was allowed  after more than one year will not make any difference.  As held by  the Madras  High  Court in Port of Madras v. Good Year India Ltd., (1973) 1  Mad  Lj 296, Section 22 of the Limitation Act must be construed as meaning that the date of the application should be taken as the date when the new party was impleaded.\n<\/p>\n
Therefore, the auction purchaser must be deemed to have been added as a party on the date when the application was made.  Apart from that, proviso to Section  21 of  the  Limitation Act, 1963, says that where the Court is satisfied  that  the omission  to include a new plaintiff or defendant was due to a mistake  made  in good  faith, it may direct that the suit as regards such plaintiff or  defendant shall  be deemed to have been instituted on any earlier date.  There can  be  no doubt  that in the present case, the auction purchaser was not made a  defendant to the suit because of the decisions of the Madras High Court, stating that  the <\/p>\n
auction purchaser is only a representative of the judgment debtor.  Further,  bv the  date  of the suit, the sale was not confirmed.  Therefore it is  a  mistake made  in  good faith.  Consequently, we can also hold that the  suit  should  be deemed to have been instituted as against the auction purchaser even on the date when the suit was filed.\n<\/p>\n
8.  With regard to the contention that the claim suit is not a  continuation  of the  claim petition and, therefore, the sale in favour of auction  purchaser  is not hit by lis pendens under section 52 of the Transfer of Property Act, Sri  P. L.  Narasimha Sarma, the learned counsel for the appellant strongly relied  upon the  decision  of  the Supreme Court in Sawai Singhai v.  Union  of  India,  AIr<\/a> decision  of the Madras High court in Krishnappa v. Abdul Khader, AIR  1915  Mad 495 (2) is no longer good law.  We find great force in this contention.\n<\/p>\n
9. In Krishnappa v. Abdul Khader, AIr 1915 Mad 495 (2), a Division Bench of  the Madras  High  Court  held,  that a suit under Order 21,  Rule  63  C.P.C.  is  a continuation  of  the  proceedings  in the claim  petition,  and  as  such,  all alienations  during the continuance of the proceedings are alienations  pendente lite  and are affected by the doctrine of lis pendens, under Section 52  of  the Transfer  of Property Act, and as such, the alienee is not a necessary party  to the  claim  suit.   Therefore, he cannot advance the plea  of  limitation  under Section  22  of the Limitation Act (which is same as Section 21 of  the  present Limitation Act.)<\/p>\n
The  learned  Judges  came  to  this  conclusion  primarily  relying  upon   the observations  of the Privy Council in Phul Kumari v. Ghanshyam Misra (1908)  ILR 35 Cal 202.\n<\/p>\n
10.  But,  in  Sawai Singhai v. Union of  India<\/a>  (supra)  Gajendragadhkar,  C.J. speaking for the Supreme Court observed that the scope of the suit under O.  21, Rule  63 is different from and wider than that of investigation under Order  21.\n<\/p>\n
Rule 58 and, in fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21, Rule 63 and, therefore, it could not be said that such a suit is outside the purview of (sic) the Privy Council in  Phul Kumari v. Ghanshyam Misra. (1908) ILR 35 Cal 202 the learned Judge observed:\n<\/p>\n
  “It  would  we  think, be unreasonable to extend the  said  observation  to  the present  case  and treat them as enunciating a proposition of law that  for  all purposes,  a  suit brought under O. 21, R. 63 is either a  continuation  of  the objection  proceedings,  or is a form of an appeal against the order  passed  in them.  In our opinion this extension is not justified because the Privy  Council could  not have intended to lay down such a broad proposition.   Therefore,  the argument  that  the  present suit is outside the purview of S. 80  of  the  Code because it is a continuation of the attachment proceedings must be rejected.”\n<\/p>\n
We think it necessary to decide this question in the view we have taken that the present  suit against the auction purchaser is not barred by limitation  in  the circumstances of the case.\n<\/p>\n
11. In the result, we confirm the judgments of both the lower courts and dismiss this appeal, but in the circumstances of the case without costs.\n<\/p>\n
 12. Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Vadami Bai vs Shaik Hussain And Anr. on 15 March, 1979 Equivalent citations: AIR 1980 AP 14 Author: G Rao Bench: G Rao, Amareswari JUDGMENT Gangadhara Rao, J. 1. Sha Nemaji Champalal (1st defendant) obtained an ex parte decree against the deceased Shaik Subhani, the husband of the 3rd defendant and father […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-76861","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nVadami Bai vs Shaik Hussain And Anr. on 15 March, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vadami-bai-vs-shaik-hussain-and-anr-on-15-march-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vadami Bai vs Shaik Hussain And Anr. on 15 March, 1979 - 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