IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 SA.No. 513 of 1998() ------------------------- AS.220/1992 of ADDL.DISTRIICT COURT,ALAPPUZHA. OS.821/1990 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT(S): RESPONDENT/PLAINTIFF ------------------------------------------------ THE STATE BANK OF INDIA REPRESENTED BY THE MANAGER, STATE BANK OF INDIA, ALAPPUZHA. BY ADV. SRI.P.V.SURENDRANATH RESPONDENT(S): APPELLANT/DEFENDANT -------------------------------------------------- R. THANKARAJ, DOOR NO.IE/451, KALAVOOR POST, ALAPPUZHA. ADV. SRI.M.V.MATHEW THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.1411/1998 IN S.A. NO.513/1998 DISMISSED 05/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 513 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2011. JUDGMENT The short point that arises for consideration in this Second Appeal is whether the lower appellate court was justified in reversing the decree of the trial court ordering eviction and allowing the plaintiff to recover the suit property with charges quantified at Rs.2900/- for use and occupation and future compensation for use and occupation determined at Rs.100/-. 2. The facts are as follows: The plaintiff Bank obtained the plaint schedule property in a court sale evidenced by Ext.A2. The property belonged to one V.Viswanatha Kurup, who mortgaged the property to the Bank for availing a loan. He defaulted the loan repayment. The plaintiff instituted O.S.8 of 1980, which was decreed in favour of the plaintiff. In execution of the decree the property was S.A.513/1998. 2 brought to sale and the Bank purchased the same. Since there were several occupants, the Bank obtained only symbolic delivery. Therefore the plaintiff filed the present suit for recovery of possession. 3. The respondent herein resisted the suit raising several contentions. One of the main contentions was that he was not a party to O.S.8 of 1980 and therefore he is not bound by the decree. He claimed that he is in possession of the property by virtue of Ext.B1 agreement with V.Viswanatha Kurup and until his liabilities are discharged, recovery cannot be had by the Bank. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 series from the side of the plaintiff. The defendant examined D.W.1 and had Ext.B1 marked. The trial court decreed the suit. The defendant carried the matter in appeal as A.S.220 of 1992. The lower appellate court by a S.A.513/1998. 3 strange reasoning reversed the decision of the trial court and dismissed the suit. Hence this Second Appeal. 5. Notice is seen issued on the following questions of law: “i) Whether in the facts and circumstances of the case, the lower appellate court is justified in holding that the suit is barred by Sec.47 of the C.P.C.? ii) Whether the dispute between the stranger will be a question coming under Sec.47 of the C.P.C. only because he was not evicted from the plaint schedule property at the time of execution proceedings in the earlier suit to which he was not a party? iii) Whether atonement if any at the time of taking delivery would disentitle the purchaser of the building in court auction to evict the occupant at a later point of time?” 6. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in interfering with the judgment and decree of the trial court. S.A.513/1998. 4 The lower appellate court has erred in law in holding that the suit is hit by Section 47 of the Code of Civil Procedure and therefore the suit has to fail. According to learned counsel, the lower appellate court has omitted to note that the defendant in the suit had setting up an independent claim with reference to an agreement with the judgment debtor and therefore he could not have been actually evicted in execution of the earlier decree. According to learned counsel, Section 47 has no application to the facts of the case. 7. Learned counsel for the appellant is well founded in his submission. Section 47 of C.P.C., reads as follows: “47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. S.A.513/1998. 5 (2) Omitted. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” 8. There can be no doubt that the Bank falls within the ambit of Section 47 of the Code. The question is whether the defendant falls within the provision. The defendant was setting up an independent right on the basis S.A.513/1998. 6 of Ext.B1 agreement and therefore he could not be said to be a person claiming under the judgment debtor. He has staked an independent, distinct claim on the suit property on the basis of some transaction between him and the defendant in O.S.8 of 1980. 9. The lower appellate court has placed considerable reliance on the decision reported in Harnandrai Badridas v. Debidutt Bhagwati Prasad (AIR 1973 SC 2423). That dealt with a case where the judgment debtor himself has raised issues regarding the right to get delivery of the property. It was in that context it was observed that even assuming that it does not fall under Order 21, the suit is not maintainable and the issues will have to be decided in the execution proceedings as per Section 47. 10. No such contingency arises in the present case. It is neither the judgment debtor nor anybody claiming under him, that is setting up the present claim. True, the defendant put forward an agreement said to have S.A.513/1998. 7 been executed by the judgment debtor in O.S.8 of 1980. By no stretch of imagination, he would fall under Section 47 of the Code. The trial court was therefore justified in law in decreeing the suit and the lower appellate court was not justified in reversing the judgment and decree of the trial court and dismissing the suit. Accordingly, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.