Possession sought by Court auction purchaser.

The acution purchaser, who filed an application under Order 21, rule 97 of the Civil Procedure Code, and who is aggrieved against the order of the learned Principal District Munsif, Tirupattur, who dismissed his application, is the petitioner in this Civil Revision Petition. Certain facts have to be noted before the relevant contentions are considered. The properties in question were subject to a mortgage originally and the mortgagor purported to sell a portion of the hypotheca even during the subsistence of the mortgage, to one Vaiboga Chettiar. Later on, the mortgagee instituted an action on the foot of the mortgage in O.S. No. 457 of 1939 and secured a mortgage decree therein. In the said mortgage decree Vaiboga Chettiar was made a party. It appears, however, from the record that he has been exonerated, but it is not clear as to why he was exonerated. This Court, however, had occasion to interpret the scope of such exoneration in A.A.O.No. 53 of 1957. Ganapatia Pillai, J., held that the exoneration of the second defendant in the mortgage action could only refer to his person and not to the properties which were the subject-matter of the hypotheca. Thereafter Vaiboga Chettiar attempted to interdict the mortgagee when he brought the hypotheca to sale pursuant to the mortgage decree. This again was considered by the learned Judge in the above Civil Miscellaneous Appeal and it was held that the properties could be sold.

The second stage was when the heirs of Vaiboga Chettiar filed an application under section 47 of the Civil Procedure Code stating that the decree was not executable. That was dismissed on 5th June, 1963. After facing and surmounting all such difficulties the mortgagee brought the properties to sale and the present petitioner in this Civil Revision Petition purported to purchase the suit properties in the Court sale held on 7th March, 1964, which was ultimately confirmed by the issuance of a sale certificate on 7th July, 1964.

On the strength of the certificate so obtained by him the petitioner-auction purchaser filed the application under Order 21, rule 97, Civil Procedure Code, to remove the obstruction caused by the respondent, who is none else than the alienee from Vaiboga Chettiar and who claimed that he was entitled to be in possession of the property and that his possession could not be disturbed. Incidentally, it may be noted that in connection with another portion of the very property which was purchased by Vaiboga Chettiar in this very same survey number the heirs of Vaiboga Chettiar caused obstruction to the very same auction-purchaser who claimed title under the sale certificate dated 7th July, 1964. But the petitioner herein apparently did not take proceedings under Order 21, rule 97, Civil Procedure Code. Anticipating, however, such an action on the part of the auction-purchaser, the heirs of Vaiboga Chettiar filed a suit, O.S. No. 506 of 1964 for a declaration that that portion of the property retained by them was their absolute property to which they were entitled in their own right and that the petitioner should be injucted from interfering with their possession. This application for injunction came up for final orders in this Court in C.R.P. No. 4 of 1966. Srinivasan, J., disposing of the Civil Revision Petition refused to grant temporary injunction asked for by the heirs of Vaiboga Chettiar and that suit is still pending.

The petitioner, however, took up a different step and proceeeding in so far as the respondent is concerned, who purchased the other moiety of the suit properties from Vaiboga Chettiar. He initiated action voluntarily under Order 21, rule 97, Civil Procedure Code, for removal of obstruction caused by the respondent as purchaser of the suit properties from Vaiboga Chettiar. The lower Court, as already stated, has dismissed this application on the only ground that the respondent is claiming title to the properties independently and that the application under Order 21, rule 97,