C V RAGHAVAGHAR Vs. LAKSHMINARASAMMA

JUDGEMENT

(1.) In these two appeals by special leave the contest is between two purchasers in execution of two decrees on successive mortgages, each seeking to redeem the other. The prior mortgagee did not implead the puisne mortgagees in his suit. In the suit brought on the subsequent mortgages the prior mortgagee was initially impleaded but later the suit was withdrawn against him. The only question debated before us is, who has the preferential right to redeem as between the two auction purchasers.

(2.) The facts may be briefly stated. The property in dispute is a house in Mysore City of which one Srirangachar was the original owner. On August 28, 1946 he borrowed Rs. 8,000 from C. K. Ramachandra Rao executing a simple mortgage deed mortgaging the house. On two different dates in March and May in 1947 Srirangachar again borrowed Rs. 1,000 and Rs. 1,500 from A. N. Dattu Rao executing two simple mortgage deeds mortgaging this house. In June 1951 Srirangachar borrowed Rs. 1,000 from C. S. Raghunatha Rao again executing a simple mortgage deed mortgaging the same property. There were thus four simple mortgages of which two were held by A. N. Dattu Rao. On March 29, 1952 the first mortgagee C. K. Ramachandra Rao instituted a suit against the mortgagor for recovery of the mortgage debt by sale of the house. As already stated the subsequent mortgagees were not impleaded in that suit, but there is no finding that they were left out designedly. The suit was decreed in September 1952, the house was brought to sale and the mortgagee himself purchased the property on November 29, 1955. The sale was confirmed on January 9, 1956. The second mortgagee Dattu Rao filed a suit on his mortgage bonds on December 6, 1956. Dattu Rao impleaded the mortgagor and his sons and the legal representatives of the fourth mortgagee C. S. Raghunatha Rao who had died in the meantime; though initially the first mortgagee C. K. Ramachandra Rao was joined as a party in this suit, later Dattu Rao withdrew the suit against him. Dattu Rao's suit was also decreed, but the first mortgagee had in the meantime obtained possession of the mortgaged property and leased it out to P. S. Raghavachar, a son of the mortgagor. In execution of the decree passed in Dattu Rao's suit the property was again sold and the present appellant C. V. Raghavachar bought it subject to the rights of the first mortgagee. The sale was confirmed on October 10, 1958. Appellant C. V. Raghavachar was able to take possession of the property except a portion and he claims to be in possession through tenants. The appellant acquired the rights of both the other mortgagees, Dattu Rao and Raghunatha Rao. In the meantime in January 1958 the first mortgagee C. K. Ramachandra Rao had sold the property to one Srinivasamurthy. On December 1, 1962 C. V. Raghavachar filed a suit, O. S. 889 of 1962, for redemption of the first mortgage and for possession of the part of the property which was in the occupation of the mortgagor's son as lessee of the first mortgagee C. K. Ramachandra Rao. In this suit both the original mortgagor and Srinivasamurthy to whom the first mortgagee sold the property were impleaded as defendants. In his written statement filed in this suit Srinivasamurthy set up his right to redeem the subsequent mortgagees as transferee of the mortgagor's equity of redemption acquired by the first mortgagee. The trial court and the lower appellate court both held that C. V. Raghavachar was entitled to redeem the first mortgage and decreed the suit. The legal representatives of Srinivasamurthy who had died in the meantime came up in second appeal to High Court giving rise to R.S.A. 40 of 1971.

(3.) The legal representatives of Srinivasamurthy had also filed a suit, O. S. 563 of 1964, against the mortgagor and his son who was the lessee for possession of the property and for mesne profits. The trial court as well as the first appellate court dismissed this suit and the legal representatives of Srinivasamurthy came up to High Court in second appeal giving rise to R.S.A. 41 of 1971.