No suit is maintainable.

Defendant in O.S.No.304 of 1975 on the file of District Munsif, Tiruvallur is the appellant in the above second appeal. The plaintiff/respondent herein filed the said suit for declaration and for recovery of possession. The trial court dismissed the suit and in the appeal, at the instance of the plaintiff, the lower appellate court allowed the appeal and decreed the suit as prayed for. Aggrieved by the judgment and decree of the lower appellate court in A.S.No.65 of 1982 the defendant has filed the present second appeal.

2. The case of the plaintiff/respondent herein is briefly stated here under: He filed the said suit for declaration and possession by saying that he purchased the suit properties in court auction and took possession of the same with standing crops on 22. 1975. It is also contended that on 22. 1975, since the lands under dispute were under the possession of the de-, fendant, symbolic delivery was effected. Since the defendant was disputing the title of the plaintiff, the plaintiff has filed the said suit. The defendant/ appellant herein filed a written statement wherein it is contended that he purchased the suit property for valuable consideration under two registered sale deeds dated 2. 1972 and 2. 1973. It is also contended that he had purchased the same without knowing the litigation between the vendors and the plaintiff and the plaintiff was never put in possession of the property. The plaintiff purchased the suit properly in court auction in suspicious circumstances and the suit was not maintainable in view of O.21, Rule 90 read with Sec.47 of the Code of Civil Procedure. The plaintiff himself was examined as P.W.I and Exs.A-1 to A-12 were marked in support of his claim. Likewise, the defendant was examined as D.W.I and he also marked Exs.B-1 to B-10. The learned District Munsif, in the light of the above pleadings after framing necessary issues and on the basis of the oral and documentary evidence, in view of Sec.47, C.P.C., by judgment and decree dated 24. 1982 dismissed the suit. Aggrieved by the said dismissal, the unsuccessful plaintiff had filed an appeal in A.S.No.65 of 1982. The learned Subordinate Judge, Tiruvallur after framing necessary points for consideration disagreeing the view expressed by the trial court, allowed the appeal and set aside the judgment and decree of the learned District Munsif and also granted decree in favour of the plaintiff as prayed for. Challenging the judgment and decree of the lower appellate court, the defendant, has filed the present second appeal. While entertaining the second appeal, this Court has framed the following substantial questions of law for consideration:

(1) Whether the suit is maintainable?

(2) Whether the suit is not barred by Sec.47 of the Code of Civil Procedure?

(3) Whether by consent there could be an attachment in execution where there was no decree for execution?

(4) Whether the legal fiction enacted under O.21, Rule 55 of Code can be altered by an agreement between the parties?

3. I have heard Mr.T.P.Sankaran, learned counsel for the appellant and Mr.M.V.Krishnan, learned counsel for the respondent.

4. The learned counsel for the appellant after taking me through the earlier litigation in the light of Sec.47, C.P.C., contended that the plaintiff has to approach the court in which decree has been granted and work out his remedy under the said section. According to him, the trial court has correctly dismissed the suit and the lower appellate court committed an error in decreeing the suit. On the other hand, the learned counsel for the respondent submitted that the present claim of the appellant has nothing to do with the earlier court auction proceedings and in view of the denial and disturbance by the defendant, it is always open to the plaintiff to file an appropriate suit; hence Sec.47, C.P.C., has no application in this case, accordingly he prayed for dismissal of the second appeal. I have carefully considered the rival submissio