State Bank of India v. R. Thankaraj

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2011-04-05
Court Decision / Holding: The 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.
Final Disposition: Appeal allowed; trial court decree restored; lower appellate court’s decree set aside; no costs.

Parties to the Case

Appellants / Petitioners

State Bank of India represented by the Manager, State Bank of India, Alappuzha

Respondents

R. Thankaraj

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.V. Surendranath

Counsels for Respondents

• Sri M.V. Mathew

Case Synopsis & Summary

This is a second appeal (SA No.513/1998) arising from a suit for recovery of possession filed by the State Bank of India (plaintiff) against R. Thankaraj (occupant) in Alappuzha. The Bank had obtained a decree in OS 8/1980 via sale of the mortgaged property and purchased the property at court sale; execution yielded symbolic delivery to the Bank, after which the Bank sought to evict the occupants and recover possession, along with charges for use and occupation (Rs. 2900) and future compensation (Rs. 100). The trial court decreed eviction in favor of the Bank. On appeal, the lower appellate court reversed the decree, holding that the suit was barred by Section 47 of the CPC, on the basis that the occupant had an independent claim via Ext. B1 and was not a party to the earlier decree. The Bank challenged this reasoning, arguing that the occupant did not fall within a representative of the decree since he had an independent right under Ext. B1, and that Section 47 concerns execution-related questions to be determined by the executing court, not by a separate suit. The court examined the applicability of Section 47, distinguished a cited precedent, and ultimately allowed the appeal, restoring the trial court’s decree for eviction and confirming possession with the Bank’s charges.

Provisions of Law Cited

Section 47 of the Code of Civil ProcedureOrder 21 CPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The State Bank of India contends that the lower appellate court erred in holding that the suit is barred by Section 47 CPC. The respondent had an independent claim based on Ext. B1 with the judgment debtor; hence he cannot be considered merely as a party bound by the decree in OS 8/1980. As a purchaser at a sale in execution, the Bank is a party to the suit, and questions relating to delivery of possession fall within the execution, discharge or satisfaction of the decree under Section 47 and must be determined by the executing court, not in a separate suit. The reliance on the decision in Harnandrai Badridas v. Debidutt Bhagwati Prasad is misplaced and distinguished, since the present occupant does not derive a claim from the judgment debtor in the same manner. The Bank prays for restoration of the trial court’s decree, eviction with the stipulated charges and compensation, and for setting aside the lower appellate court’s reversal.

Contentions of Respondents

The occupant contends that he has an independent right under Ext. B1 and was not a party to O.S. 8/1980; therefore he is not bound by the decree and Section 47 CPC should bar the suit between the Bank and the occupant. Since the occupant asserts a distinct right against the judgment debtor, the matter should be decided in execution and not in a separate suit. The lower appellate court correctly held that the suit is barred by Section 47 as the questions pertain to the mode of delivery and possession under the decree; the Bank should pursue its remedies in execution proceedings rather than in a separate suit against the occupant.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Harnandrai Badridas v. Debidutt Bhagwati Prasad	AIR 1973 SC 2423	Distinguished	The judgment relied on this decision to discuss Section 47 but distinguished it since the present case involves an occupant with an independent claim rather than a judgment debtor seeking delivery in execution.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **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** **==> picture [412 x 239] intentionally omitted <==** **----- Start of picture text -----** S.A. NO.513/1998 DISMISSED 05/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs **----- End of picture text -----** ## **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 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 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.