Person, who failed to avail speedy remedy to get delivery of possession through Executing Court, can file regular Suit for possession based on title, subject to limitation - Separate Suit filed by Auction Purchaser is not barred under Section 47

Citation

2017 (6) СТС 602 (Mad)

IN THE HIGH COURT OF MADRAS 

(Madurai Bench)

5.5. Sundar, J.

S.A.(MD) No.62 of 2011 & C.M.P. (MD) No.4235 of 2016.

March 03, 2017

T. Muthukumarasamy               ...Appellant

...VS...

J.Selvasundarraj                  ... Respondent

Code of Civil Procedure, 1908 (5 of 1908), Section 47, Order 21, Rule 95 Doctrine of Election Auction Purchaser purchased Suit property in Court Auction Execution Petition filed for delivery of possession dismissed for default Auction Purchaser filed separate Suit for recovery of possession Maintainability of Suit Whether separate Suit filed by Auction Purchaser for recovery of possession is barred under Section 47 Person, who failed to avail speedy remedy to get delivery of possession through Executing Court, can file regular Suit for possession based on title, subject to limitation Auction Purchaser has right of election to choose remedy Separate Suit based on title is independent and well protected under Common law principles Dismissal of Execution Petition for default would not operate as res judicata Separate Suit filed by Auction Purchaser is not barred under Section 47