Back
1928 Supreme(Mad) 221
IN THE HIGH COURT OF MADRAS
Wallace, J.
Lakshmana Dola Behara
Versus
Jujisti Pandi And Ors.
Decided On : 19 July, 1928
The main legal point established is that when the claim to enforce a mortgage decree against parties to the original suit falls under Section 47 of the Code of Civil Procedure, the proper procedure is to put it in under Section 47 and not by way of a separate suit.
Headnote:
Section 47 - Suit Barred - The court held that the suit was barred by Section 47 of the Code of Civil Procedure as the defendants were parties to the original mortgage suit and any claim to enforce the mortgage decree against them should have been put in under Section 47 and not by a separate suit.
Fact of the Case:
The appellant raised the contention that the suit was barred by Section 47 of the Code of Civil Procedure. The trial Court's judgment indicated that the defendants were parties to the original mortgage suit and should have been dealt with under Section 47.
Finding of the Court:
The Court allowed the plea to be raised at this stage, held that the suit was not maintainable in its present form, and permitted it to be converted into an application under Section 47 of the Code of Civil Procedure. The case was remitted to the trial Court for fresh hearing on the converted application.
Issues: The main issue was whether the suit was barred by Section 47 of the Code of Civil Procedure, and if so, whether it could be converted into an application under Section 47.
Ratio Decidendi: The defendants being parties to the original mortgage suit and the claim to enforce the mortgage decree against them falling under Section 47, the suit was held to be not maintainable in its present form and was permitted to be converted into an application under Section 47.
Final Decision: The Court remitted the case to the trial Court for fresh hearing as an application under Section 47 of the Code of Civil Procedure.
Wallace, J.
1. The appellant has raised for the first time in this Court the contention that the suit was barred by Section 47 of the Code of Civil Procedure. It has been objected that I should not allow that plea to be raised at this stage, but this Court has on other occasions allowed, it to be raised [see Jainulabdin Sahib v. Krishna Chettiar 63 Ind. Cas. 200 : (1921) M.W.N. 491 : 41 M.L.J. 120 : 14 L.W. 92] and as it is a pure matter of law affecting the very validity of the suit, it is a point of jurisdiction that must be decided.
2. It is clear from the judgment of the trial Court that the defendants Nos. 2 to 4 were parties to the original mortgage suit and were exonerated by the then plaintiff mortgagee. They are, therefore, "parties to the (mortgage) suit" within the meaning of Section 47 of the Code of Civil Procedure. (See Ramaswami Sastrulu v. Kameswaramma 23 M. 361 : 10 M.L.J. 126, Sethu Konar v. Ramaswami Konar 94 Ind. Cas. 526 : (1926) M.W.N. 251 : 50 M.L.J. 205 : A.I.R. 1926 Mad 484 : 49 M. 494 and Medisetti Venkataswami v. Kunchalla Chidambaram 45 Ind. Cas. 671 : 23 M.L.T. 206 Any claim by the mortgagee to enforce his mortgage decree against defendants Nos. 2 to 4 would have to be put in under Section 47 of the Code of Civil Procedure and should not be by suit and the present plaintiff, his successor-in-title, cannot be in any better position. The proper procedure, therefore, was by an execution application and not by way of suit, and the present suit in its present form is not maintainable.
3. Inasmuch as the point is only raised here now, I am not prepared to dismiss the suit outright. I permit it to be converted into an application under Section 47 of the Code of Civil Procedure and inasmuch as fresh questions of limitation, conversion into a suit, etc, may arise, I remit it to trial Court for fresh hearing.
4. Costs up to date will abide the result.
