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2005 Supreme(Kar) 591
HULUVADI G. RAMESH, J.
K.R. SRINIV ASA IYENGAR (DEAD) BY L.Rs Appellant
versus
K. MUTHURAJ Respondent
Regular Second Appeal Nos. 902 and 903 of 2000 connected with Civil Revision Petition No. 4494 of 2001.
Decided on 26th September, 2005
M/s. A.N. Hegde and SPS Associates, Advocates for Appellants in Regular Second. Appeal Nos. 902 and 903 of 2000;
Sri K.R. Nagendra, Advocate for Petitioner in Civil Revision Petition No. 4494 of 2001;
Sri S.P.Shankar, Advocate for Respondents in Civil Revision Petition No. 4494 of 2001.
Headnote:CIVIL PROCEDURE CODE, 1908
Confirmation of sale -Effect of. [Huluvadi G Ramesh, J]: Once an order was made under 0.21 R 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under S.65, CPC and the title in the property thereafter vests in the auction purchaser and not in the judgment debtor . The aforesaid ratio is clearly in favour of the appellants herein.
Cases Referred: (1985) 2 SCC 332; AIR 1991 SC 1825.
Transfer of Property Act, 1882 - Vesting of interest in property - Section 111(d) -Vesting of interest in property -Tenant purchasing leased property in Court auction -Lesser rights of tenancy merges with higher ownership rights -No need of filing suit for recovery of possession. [Huluvadi G Ramesh, J]: In view of the ratio laid down in the decision relied upon by the respondent s counsel himself, there is a merger. As is clearly pointed out therein, there is no question of filing the suit for recovery of possession of the property if the plaintiff had clear title to the property from the landlord (licensor) and lawfully claiming under him. Though it is not by virtue of direct sale between the tenant and the landlord, the property has been purchased by the tenant in a Court auction for which the landlord is also a party.
Cases Referred: (1985) 2 SCC 332; AIR 1991 SC 1825.
CIVIL PROCEDURE CODE, 1908 - Maintainability of revision - Section 96 -Maintainability of revision -Dismissal of execution petition -Is not revisable -Proper remedy is an appeal. [Huluvadi G Ramesh, J]: The order passed by the execution Court in dismissing the execution petition has reached finality. Whether the executing Court was right or wrong in dismissing the case since there is a merger of interest in view of the tenant purchasing the property, the said order has reached finality. Since the said order is not a revisable order, the revision petitioner ought to have filed an appeal as provided under the Sec. 96, CPC as it amounts to a decree. In that view of the matter, the revision petition has to be dismissed however, with liberty to the petitioner to file an appeal as provided under law
.
Cases Referred: (1985) 2 SCC 332; AIR 1991 SC 1825.
CIVIL PROCEDURE CODE, 1908 -
Title of auction purchaser - Section 65 -Title of auction purchaser -Relates back to date of sale. [Huluvadi G Ramesh, J]: Once an order was made under 0.21 R 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under S.65, CPC and the title in the property thereafter vests in the auction purchaser and not in the judgment debtor . The aforesaid ratio is clearly in favour of the appellants herein.
Cases Referred: (1985) 2 SCC 332; AIR 1991 SC 1825.
Confirmation of sale
CIVIL PROCEDURE CODE, 1908 - Order 21, Rule 92 -Confirmation of sale -Effect of.
[Huluvadi G Ramesh, J]: Once an order was made under 0.21 R 92 confirming the sale, the title of the auction purchaser related back to the date of sale as provided under S.65, CPC and the title in the property thereafter vests in the auction purchaser and not in the judgment debtor . The aforesaid ratio is clearly in favour of the appellants herein.
Cases Referred:(1985) 2 SCC 332; AIR 1991 SC 1825.
These two second appeals are filed by the plaintiffs being aggrieved by the dismissal order passed by the Civil Judge (Senior Division), Arsikere in R.A. Nos. 3 and 4 of 1995 respectively confirming the order of the Trial Court.
2. The revision petition is against the order in execution dismissing the execution petition filed by the decree-holder in rent control proceedings. '
3. The suit property is a shop-cum-residential premises bearing No. 45, B.H. Road, Arsikere. The plaintiff is said to have taken this shop on lease along with the residential premises about 50 years back. The brother of the decree-holder one Subramani is said to have mortgaged the suit property to one Bhagirathamma and then usufructuary mortgage to Siddamallappa for Rs. 5,000/- stating that he is the owner of the suit property. The said Siddamallappa filed a suit in 0.8. No. 103 of 1971 for recovery of the amount paid to Subramani and obtained a decree for Rs. 9,075 i.e., Rs. 5,000/- being the principal amount plus the interest due as on the said date. Thereafter, in the execution proceedings filed by Siddamallppa for realisation of the amount, the suit property bearing No. 45 which is the subject-matter of the rent control proceedings was also sold infraction in which the plaintiff who was said to be in possession of the premises, who is also the judgment debtor in the rent control proceedings, in said to have purchased the suit property for Rs. 30,000/-. However against the order in O.S. No. 103 of 1971, the decree-holder Muthuraj has preferred an appeal in RA. No.2 of 1975 which was renumbered as 18 of 1979 seeking for setting aside the order of the Trial Court on thou that he had not joined in execution of the mortgage defendant the said was disposed of holding that Muthuraj was not personally liable and for recovery of mortgage debt the property No. 45 could be sold in terms of the Transfer of Property Act, 1882 and Order 34 of the Civil Procedure Code, 1908.
4. Meanwhile, Muthuraj had filed HRC No. 4 of 1978 for eviction of the tenant. There was an order of eviction against which revision was filed in H.R.R.P. No. 21 of 1981 which came to be dismissed. Siddamallappa who had obtained a decree in the suit O.S. No. 103 of 1971, filed a execution petition to realise the mortgage debt of Rs. 15,705.45. The suit property in which the tenant was in occupation, was purchased by the tenant himself subject to acceptance of the final bid before the Court which came to be accepted before the Court on 10-101988 for Rs. 30,000/-. Thereby the execution Court confirmed the sale and issue the sale certificate on 5-12-1988.
5. In the meanwhile, the house rent proceedings preferred before this Court in H.R.C. No.4 of 1978 and the revision thereof in H.R.R.P. No. 21 of 1981 were dismissed and the tenant was given some time to vacate the premises and surrender possession. However the tenant filed a suit in O.S. No. 175 of 1989 seeking for an injunction which came to be dismissed against which the miscellaneous appeal filed also came to be dismissed. Against the said order, Revision Petition No. 5026 of 1990 was filed which also came to be dismissed. In C.P. No. 150 of 1993 filed in C.R.P. No. 5026 of this Court directed the parties to maintain status quo. The Execution Case No. 162 of 1990 filed by the decree-holder was dismissed on the ground that the tenant who was in possession of the suit premises had purchased the same and there was a merger of interest against which, the present C.R.P. No. 4494 of 2001 is preferred by the decree-holder.
6. RS.A. Nos. 902 and 903 of 2000 are filed against the judgment and decree in O.S. Nos. 175 of 1989 and 270 of 1993 dismissing the suit filed by the plaintiff and confirmed by the Civil Judge (Senior Division), Arsikere in the appeal preferred by the plaintiff.
7. At the time of admission, the following substantial question of law was raised in both the second appeals:
Whether the sale of mortgaged property on 3-10-1988
