MADURAMBIGAI AMMAL Vs. D SOMASUNDARAM

JUDGEMENT

(1.) THE defendants are the appellants before us. The respondent Nos. 1 to 7 filed a suit for delivery of possession of mortgaged property. The mortgage was executed on 30.11.1974. There were two subsequent mortgages one on 15.7.1975 and second on 18.12.1975. After due notice to the mortgagors, the 13th defendant of the suit brought the suit property on public auction after sufficient advertisements published in the newspapers and the auction was held on 31.8.1981. The plaintiffs in the suit was the highest bidder in the auction.

(2.) THEY paid the entire amount and sought for execution of sale-deed of the mortgage. The present appellants filed suit for redemption on 1-10-1981. Originally, it was filed in the form of an application as an indigent person and later it was converted into suit. Based on the sale-deed suit for possession was filed by respondent Nos. 2 to 7 on 10.9.84. The present appellants contended that by virtue the suit filed on 1.10.81, the right of redemption survived and it was not effected by the sale held on 31.8.1981. This contention was rejected and suit for possession filed by respondent Nos. 2 to 7 was decreed. Against the same O.S.A. was filed and by the impugned judgment the plea raised by the appellants was rejected.

(3.) IT is argued that appellants had filed a suit for redemption prior to the execution of sale deed, the right of redemption would survive and the appellants relied on second proviso to Section 60 of the Transfer of Property Act, 1882. But we do not find any force in this contention. The proviso specifically says that the right conferred by the right of redemption conferred on the mortgagor under Section 60 could be extinguished by the act of parties or by decree of the court. The sale deed was executed in favour of the auction purchaser on 10.11.81 and the appellants in his suit for redemption had not obtained any interim order staying the operation of the auction sale or the execution of any sale deed and in the absence of such right of redemption would be extinguished.