1966 Supreme(Mad) 367

Madras High Court
NATESAN
Marudanavagam Pillai - Appellant
Versus
P.K.Venkataswami Naidu - Respondent
Decided On : 12/08/1966

All questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree have to be determined by the court executing the decree and not by a separate suit.

Headnote:

CIVIL PROCEDURE CODE - SECTION 47 - EXECUTION OF DECREE - IDENTITY OF PROPERTY - SUIT FOR DECLARATION THAT PROPERTY NOT SUBJECT TO MORTGAGE DECREE - BAR OF SECTION 47 C.P.C. - COURT EXECUTING DECREE TO DETERMINE IDENTITY OF PROPERTY.

Fact of the Case:

Plaintiff filed a suit for a declaration that the court sale in an earlier mortgage suit was not valid and binding on him and for restraining defendants from interfering with his ownership and possession of the property in his possession. The earlier suit was instituted by the present appellant as plaintiff on a mortgage executed in favour of the predecessor of first defendant's assignor by one Gurunatha Asari. In that suit, the present plaintiff was made the second defendant and the second defendant in the present suit was impleaded as the fifth defendant. The mortgage decree provided that a moiety of item 3 and item 1 should be sold for recovery of a sum of Rs. 500. A moiety of item 3 it was stated in the decree belonged to the fifth defendant therein, the second defendant in the present proceedings. The remaining moiety of item 3 as belonging to the second defendant therein, that is the plaintiff in the present proceedings, was to be sold for the recovery a sum of Rs. 400 with a subsequent interest. The plaintiff contended that the property he was in possession of and sought to be proceeded against was not the subject of the mortgage decree.

Finding of the Court:

The trial court rejected the plaintiff's contention that the decree in the mortgage suit was a nullity for the reason that it was passed in terms of a compromise to which the plaintiff was not a party. The learned District Munsif further held that the objection raised by the plaintiff to the execution of the decree was one that would come under S. 47 C.P.C. and that a suit was barred. On appeal, the learned Subordinate Judge of Tiruchirapalli has reversed this decision and decreed the suit as prayed for the only question that was taken up for determination in appeal and appeared to have been pressed before the appellate court was that the A schedule property was not the property comprised in the mortgage decree. The learned Subordinate Judge has taken the view that the descriptive boundaries should prevail over the survey numbers.

Issues: Whether the suit for declaration that the property not subject to mortgage decree is barred under Section 47 C.P.C.?

Ratio Decidendi: The court held that the suit was barred under Section 47 C.P.C. as the question of identity of the property was a matter relating to execution, discharge and satisfaction of the decree and had to be determined by the court executing the decree. The court further held that the plaintiff's claim that the decree cannot be satisfied by proceeding against the A schedule property was also a matter relating to execution, discharge and satisfaction of the decree and should be determined by the court executing the decree.

Final Decision: The court set aside the decree of lower appellate court and restored the decree of the trial court and allowed the second appeal.