The auction purchaser's suit for possession is maintainable despite conflicting precedents, affirming the validity of the auction sale and the rights conferred by the execution proceedings.

JUDGMENT :

The plaintiff in O.S No.14 of 2014 on the file of the Sub Court, Sivakasi is the appellant herein. The suit was filed for the relief of declaration and recovery of possession.

2. The suit property originally belonged to defendants 1 to 10. They had mortgaged the property in favour of one Kutralinga Moopanar vide registered mortgage deeds dated 12.03.1960 and 28.11.1961. The mortgagee dues were not cleared. The mortgagee had passed away and his legal heirs filed O.S No.52 of 1973 for recovery of the amount due under the mortgage deeds. Preliminary decree was passed on 11.12.1973 and final decree was passed on 07.09.1974. Up to this point, there is no controversy. The plaintiff would claim that final decree was assigned in favour of one N.M.Narayana Moopanar who filed E.P No.12 of 1983 in which the suit property was brought to sale on 24.08.1984. The plaintiff was the auction-purchaser. The sale was confirmed on 16.07.1996. Madasamy Thevar, the 11^th defendant in the present suit, had purchased the suit property from D1 to D10 in the year 1981. Since he declined to hand over possession, the auction-purchaser had to file O.S No.14 of 2014 for declaration and recovery of possession.

3. The stand of Madasamy Thevar (D11) was that the decree holders in O.S No.52 of 1973 had assigned the decree in favour of one Gurupackiyam on 18.01.1979 who filed E.P No.4 of 1981. In the meanwhile, he had purchased the suit property vide sale deeds dated 13.04.1981 and 18.05.1981. He paid the decreetal amount of Rs. 51,826/- to the second defendant who in turn paid the same to Gurupackiyam. Since the decree was satisfied, memo was filed on 01.03.1983 to that effect and E.P No.4 of 1981 was closed. N.M.Narayana Moopanar had no right to bring the suit property to sale by filing E.P No.12 of 1983. The right to apply for final decree was given only to the plaintiffs (legal heirs of Kutralinga Moopanar, the first mortgagee) in O.S No.52 of 1973. It is true that one Lakhsmanan Chettiar in whose favour a second mortgage was created was impleaded as the 11^th defendant in O.S No.52 of 1973. But he had no right to assign the decree in favour of Narayanan Moopanar. The auction that took place pursuant to the steps taken by Narayanan Moopanar is void. Narayanan Moopanar had obtained amendment of the final decree by filing I.A No.128 of 1982. But in the said application, Madasamy Thevar was not impleaded. Madasamy Thevar (D11) contended that the auction-purchaser's remedy stood barred by limitation.

4. Based on the rival pleadings, the trial court framed the necessary issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A8. By the time when the matter was taken up for trial, Madasamy Thevar passed away and his legal heirs were brought on record. His son Ramasubramaniam was examined as D.W.1. Ex.B1 to Ex.B10 were marked. After consideration of the evidence on record, the trial Court by judgment and decree dated 30.04.2014, decreed the suit as prayed for. Aggrieved by the same, the legal heirs of Madasamy Thevar filed A.S.No.18 of 2014 on the file of Principal District and Sessions Judge, Virudhunagar District at Srivilliputhur. By the judgment and decree dated 20.06.2018, the decision of the trial Court was reversed and the suit came to be dismissed and the appeal was allowed. Aggrieved by the same, the plaintiff has filed this second appeal. The second appeal was admitted on 08.03.2021 and the following substantial questions of law were formulated:-

“i) Whether the first appellate Judge committed a serious error of law regarding presumption in favour of the plaintiff since execution petition filed by the puisne mortgagee in E.P.No.12 of 1983 would be taken on record only in the event of an executable decree in favour of decree holder and observed that plaintiff failed to prove decree in favour of puisne mortgagee and therefore the sale conducted in favour of the plaintiff do not confer title?

ii) Whether a presumption in law lies in favour