Maintainability of the suit to set aside summary order.

The 1st defendant appeals from the judgment and decree, dated 30th November, 1955, passed by the learned Subordinate Judge of Madurai m O.S. No. 56 of 1955.

The 1st defendant had mortgaged his house in favour of one Valliyappa Chettiar. He instituted O.S. No. 358 of 1949 on the file of the District Munsiff, Madurai Town, to enforce the mortgage. A decree for sale was passed in that suit. In execution of the decree, the property was sold in Court auction on 5th March, 1951. The plaintiff, who had been impleaded in that suit as puisne mortgagee purchased the property at the auction and duly obtained a sale certificate. She applied for delivery of the property in E.A. No. 194 of 1954. At that time a portion of the house was in the occupation of the appellant and the other portions were in the occupation of three tenants. The plaintiff’s witnesses say that the three tenants attorned to the plaintiff, that the 1st defendant vacated the portion which was in his occupation, that the plaintiff leased that portion to one Rajathi Ammal and that complete possession of the house was thus delivered to the plaintiff through Court. The 1st defendant admits that the three tenants attorned to the plaintiff and that he attested the endorsement on the delivery warrant that the house had been delivered to the plaintiff through Court. In regard to the portion which was in his occupation at the time of the delivery, the 1st defendant says that Rajathi Ammal executed a lease deed in respect of that portion and that he attested that lease deed. Subsequently, the plaintiff was paying municipal taxes in respect of the property. Rajathi Ammal sent rent by money order for a few months to the plaintiff for the portion of the house covered by the lease-deed which had been executed by her. She failed thereafter to pay rent. The plaintiff filed M.B.P. No. 502 of 1954 before the Additional Rent Controller, Madurai, under the Madras Buildings (Lease and Rent Control) Act, 1949, (hereinafter referred to as the Act) for evicting her. The Additional Rent Controller passed an order under section 7 of the Act for eviction of Rajathi Animal.

The property was situate in the City of Madurai. Under section 9 of the Act, an application for execution of the order for eviction had to be made to the District Munsif, Madurai Town. The plaintiff applied in E.P. No. 775 of 1954 on the file of the District Munsif, Madurai Town, for delivery of the property in execution of the order which has been passed against Rajathi Ammal in M.B.P. No. 502 of 1954 on the file of the Additional Rent Controller, Madurai. Delivery was ordered. When the plaintiff went to take possession, the appellant obstructed. The plaintiff filed E.A. No. 931 of 1954 under Order 21, rule 97, of the Civil Procedure Code (hereinafter referred to as the Code) for the removal of obstruction and for delivery. The District Munsif passed an order under Order 21, rule 98 of the Code directing that the plaintiff be put in possession of the property. The 1st defendant preferred an application in revision (C.R.P. No. 31 of 1955) to the District Judge, Madurai, under section 12-B of the Act. The District Judge set aside the order passed by the District Munsif. Thereupon the plaintiff instituted under Order 21, rule 103 of the Code, the suit which has given rise to this appeal praying that the summary order passed by the District Judge in C.R.P- No. 31 of 1955 be set aside. The Subordinate Judge granted the plaintiff a decree setting aside the order passed by the District Judge in C.R.P. No. 31 of 1955 on his file. The 1st defendant appeals.

The suit was instituted against the 1st defendant and his sons, defendants 2 and 3. The suit has been dismissed as against defendants 2 and 3. The plaintiff has not appealed from the decree dismissing the suit against defendants 2 and 3.

The 1st defendant pleaded that the plaintiff who had purchased the property in Court auction in O.S. No. 358 of 1959 had agreed to sel