There is no sudden provocation.

K.M. Natarajan, J.

1. This appeal is directed against the order passed by the Subordinate Judge, Tirupattur, allowing the application to remove the obstruction, under Order 21, Rule 97, C.P. Code.

2. The facts which are necessary for the disposal of this appeal are briefly as follows: The respondent filed a suit on mortgage in O.S. No. 106 of 1971 on 20-12-1971 and obtained a preliminary decree on 29.2.1973. The final decree was passed on 30.10.1973. The mortgaged property was brought to sale in execution of the said decree in court auction and the respondent purchased the same on 19.9.1973. The sale was confirmed on 29.10.1973. When the respondent came to take possession of the property on 24.12.1973, the appellant herein obstructed the same.

3. The appellant resisted deliver of possession on the ground that he filed a suit for recovery of money on 11.3.1971, in O.S. No. 180 of 1971 and an order of attachment was obtained on 12.3.1971. The suit was decreed on 26.6.1971. IN E.P. 64 of 1973 the property was brought to sale on 22.2.1973, and he purchased the same in the court auction sale and the sale was confirmed on 26.9.1973. Possession of the property was delivered to him through court on 18.10.1973.

4. The Court below allowed the application on the ground that the appellant being a money decree holder and he having purchased the property in execution of the said money decree during the pendency of the mortgage suit pendente lite, must be treated as a representative-in-interest of the judgment debtor and as such, he is bound by the mortgage decree and he is bound to give possession to the respondent, a mortgage decree holder in O.S. No. 106 of 1971.

5. Learned Counsel for the appellant relied on the decision of a single Judge of this Court reported in Rajagopala Naicker v. Jayarama Naicker and Ors. 1974 T.L.N.J. 455, where Ramaprasada Rao, J., as he then was, relied on the decision in Nagendra v. Lakshmi 65 M.L.J 108 : 38 L.W. 169 : A.I.R. 1933 Mad. 583 (F.B.), and held that whoever comes first will be served first. The learned Counsel relied on the said decision and submitted that in view of the fact that the appellant herein purchased the property admittedly at the first instance and got possession through court, he is entitled to the property and the subsequent purchaser cannot ask for removal of obstruction. Further, the purchase was through court and it is not affected by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. The learned Counsel for the respondent drew my attention to the earlier decision rendered by this Court in a case between the same parties in the same matter, in C.R.P. No. 3288 of 1974. Relying on the ruling in Subba Rao v. Venkateseshacharlu 61 L.W. 535 : A.I.R. 1949 Mad. 207 : (1948)1 M.L.J. 128, it was held that the rival contentions; between the parties ought to have been decided in the execution petition and not relegated to a separate suit in view of the amendment of Section 47, C.P.C. in Harnandrai Badridas v. D.B. Prasad, the same view was affirmed. The learned Counsel for the respondent submitted that the decision reported in Nagendran v. Lakshmi 38 L.W. 169 : 65 M.L J. 108, referred to in Rajagopala Naicker v. Jayarama Naicker and Ors. 1974 T.L.N.J. 455 is in respect of purchase by two different mortgagees and in that connection it was held that the deciding factor is priority in date of sales and not dates of mortgage. That is not the case between a simple money decree holder and a mortgage decree holder and the sale in pursuance of the same. The said decision was also rendered before the amendment of the Civil Procedure Code. The decision in Nagendran v. Lakshmi 38 L.W. 169 : 65 M.L.J. 198 has no application to the facts of this case, as the dispute was between two mortgagee-decree-holders and it was not brought to the notice of the single Judge of this Court while the decision was rendered in Rajagopala Naicker v. Jayarama Naicker and Anr. 1974 T.L.N.J. 435. On