Order of impleading assignee decree holder invalid.

This Civil Miscellaneous Second Appeal arises out of execution proceedings, and it serves as an illustration of the difficulties of a judgment-creditor,who, after the decree in his favour, finds himself from the frying pan to the fire. The elaborate provisions of the Civil Procedure Code in the execution chapter are designed to prevent the decree-holder from snatching the property of the judgment-debtor, but in actual operation, they have the unintended effect of keeping the decree-holder at bay and away from the fruits of his decree. Not unoften, the process of execution occupies more time than the duration of the suit, the reason being that it is the last ditch for the judgment-debtor to offer resistance and that the Statute gives him full assistance in that endeavour. But that is law, and the duty of the Court is only to administer it.

The following facts bring out the present contest between the parties. One Somasundara Mudaliar, who was the owner of an item of property, forming the subjectmatter of this appeal, filed a suit against the present appellant, Sampath Mudaliar, and two others, for recovery of possession on the footing that the appellant was a tenant of that property. The appellant was impleaded as the third defendant in that suit, which is O.S. No. 630 of 1941 on the file of the District Munsif’s Court, Poonamallee. The suit ended in a compromise, which took the shape of a joint endorsement made by the parties. A decree in terms of the joint endorsement followed The decree was that the first defendant in that suit should deliver possession of the property to the plaintiff, that he should pay the arrears of rent, and, damages for use and occupation claimed by the plaintiff, and that the appellant and the second defendant in that suit should be given six months time to vacate the property. It appears that, notwithstanding the fact that Somasundara had an executable decree in his favour for recovery of possession, the appellant-third defendant continued to be in possession. Somasundara, however, agreed to convey the property in favour of a certain Sakunthalammal, the respondent herein, for consideration. Sakunthalammal instituted a suit, O.S. No. 202 of 1955 on the file of the District Munsif’s Court, Poonamallee claiming specific performance of the contract in her favour, and eventually obtained a decree. That was a so a decree based upon compromise between the parties. Somasundara undertook to execute and register a sale deed in favour of Sakunthalammal conveying the property Actually, Somasundara executed a registered conveyance on 24th February, 1960 in favour of Sakunthalammal. The sale deed expressly mentioned that the vendee (Sakunthalammal) should get herself impleaded as a party in the proceedings in O.S. No 630 of 1941 and get possession by delivery through Court Thereafter, Sakunthalammal filed M.P No. 1095 of 1960 in O.S. No. 630 of 1941 praying for delivery of possession on the ground that she had become entitled to execute the decree by virtue of the sale deed in her favour. The executing Court impleaded her as a party in that suit and directed delivery of possession. No notice of that proceeding was however, given to the third defendant in that suit namely the appellant herein. This order was passed on 8th August, 1960. But Sakunthalammal appears to have been unable to take possession of the property. The appellant filed E.A. No. 1756 if 1961 in O S No. 630 of 1941, an application purporting to be under section 47, section 151, an Order 21, rule 16 of the Civil Procedure Code praying for cancellation of all the execution proceedings commencing from the impleading of the Respondent as a party and for other appropriate reliefs. He contended that the order impleading the respondent as a party to the execution proceedings in O. S. No. 630 of 1941 was illegal, if not null and void as such an order has been issued without notice to him. He pointed out that the application of the respondent was, i