Conversion of the suit into an application u/s 47 C. P. C.

M.A. Sathar Sayeed, J.

1. The plaintiff, who has lost in both the Courts below has filed the above second appeal.

2. The facts of the case are discussed in detail by the Courts below and it is unnecessary for me again to go in detail about the same in this second appeal. For the disposal of this appeal, the following facts are sufficient.

3. O.S.No. 31 of 1951 was filed by one Chandalankara Nainar against Chandranatha Nainar, Baradaraju Nainar, Badrabagu Nainar and one Vasantharai Ammal, for the recovery of the amount due on a promissory note executed in his favour. The suit was decreed. In the present suit O.S. No. 3 of 1971, against which the above second appeal arises, Badrabagu Nainar to the first defendant and his mother Vasantharai Ammal is the second defendant. Defendants 1 and 2 in that suit are brothers. The first defendant herein is the son of the first defendant in O.S. No. 31 of 1951. Defendants 3 and 4 herein are the sons of the first defendant herein and all of them constituted members of a Hindu joint family. Badraraju Nainar the second defendant in that suit died and his heirs who are defendants 5 and 6 are impleaded herein.

4. In pursuance of the decree obtained by Chandalankara Nainar in O.S. No. 31 of 1951, E.P. No. 170 of 1955 was filed by the plaintiff in that suit and the suit property was brought to sale. The appellant in this second appeal is a Court auction purchaser. Subsequent to the Court auction purchase, the appellant filed E.A. No. 449 of 1963 on 19.8.1963 seeking delivery of possession of the suit property, but the same was dismissed. It is only to recover possession of the suit property, which is in the possession of defendants, the plaintiff, who is a Court auction purchaser, has filed the present suit O.S. No. 3 of 1971 against which the above second appeal arises.

5. The suit was resisted by defendants 1, 3, 4 and 6, From the averments in the written statement, the defence raised by the defendant was, that the appellant herein is not the real purchaser, but only a benamidar for the decree-holder who purchased the suit item in Court auction. The court sale is not binding because there was no valid attachment and the persons interested in the property were not impleaded in the execution petition and no notice was issued to the judgment-debtors under Order 21, Rule 66, C.P.C. There was no proper publication of the sale proclamation and the property worth about Rs. 30,000/- was sold for a very low price of Rs. 5,000/- and odd. The suit is barred by limitation and also barred under the provisions of Section 47, C.P.C.

6. The trial Court held, that the plaintiff was not a benamidar for the decree-holder nor the Court sale is invalid. The trial Court further held that the suit is barred by the provisions contained in Section 47, C.P.C. Thus the trial Court dismissed the suit on the sole ground that the present suit as prayed for does not lie in view of the provisions under Section 47, C.P.C.

7. On appeal by the plaintiff, the low(SIC) appellate Court, on the question whether the plaintiff was a benamidar for the decree-holder in purchasing the suit ite(SIC) in court auction, gave a finding that the plaintiff is not a benamidar. On the question of validity of the sale, the low(SIC) appellate Court has held that the sal(SIC) is not vitiated for any of the reaso(SIC) mentioned in the written statement. O(SIC) the question whether the suit is barre(SIC) by the provisions of Section 47, C.P.C. the lower appellate Court, on an elaborat(SIC) discussion, came to the conclusion that the plaintiff's right to apply for possession arose only, on the date on which the sale was confirmed on which date the appellant became a party to the suit as per the amended provision of Section 47, C.P.C. and that the suit is barred by the provisions of Section 47, C.P.C., and thus dismissed the appeal confirming the judgment and decree of the trial Court. It is against this dismissal of A.S. No. 296 of 1976, the above second a