K MUTHUSWAMI GOUNDER Vs. N PALANIAPPA GOUNDER

JUDGEMENT

(1.) These appeals arise out of dispute between two competing Court auction purchasers on the basis that the rights derived by each of them is superior to the other emerging out of alleged hypothecation of such property. Respondent filed a suit in O.S. 12 of 1967 on the files of II Subordinate Judge, Tiruchirappalli to restrain the appellant herein from interfering with respondents possession of the suit property. The appellant filed in the same Court a suit in O. S. 211 of 1967 for redemption of the suit land, and recovery of possession thereof. The undisputed facts leading to the two suits are as under. The suit land belonged to one Ganesan who executed a registered security bond on 18-12-1950 (18-2-1950) for a sum of Rs. 3,000/- hypothecating the suit property and also executed a promissory note in favour of one Vairavan Chettiar and borrowed moneys. Vairavan Chettiar obtained a decree on the foot of the Security Bond and in execution thereof brought the suit property to sale. Respondent purchased the suit property in the said Court auction sale on 6-2-1957 and the same was confirmed on 15-3-1957. Respondent took delivery of the property through Court. Sandanam Mudaliar and Company filed O.S. No. 108 of 1950 for recovery of a sum of Rs. 6,494.10 against Ganesan. In that suit the plaintiffs got certain amounts due to Ganesan from the South India Railway attached before judgment. Ganesan filed I.A. No. 811 of 1950 in the said suit seeking for raising the attachment before judgment of the amount and it was ordered subjet to his furnishing of security. Ganesan executed on 12-4-1950 a registered deed in respect of the said property for Rs. 7,000/-, costs of the suit and subsequent interest. In this said deed recitals were made referring to the security bond dated 18-2-1950, executed in favour of Vairavan Chettiar as a prior encumbrance. O.S. No. 108 of 1950 filed by Sandanam Mudaliar and Co. was decreed on 25-1-1956. Sandanam Mudaliar and Company in execution of the decree obtained by them brought the property to sale on 15-9-1962 and the original appellant Muthuswami Gounder purchased the property on 14-12-1966 for Rs. 12,250/- which sale was confirmed on 19-1-1967.

(2.) The suit filed by appellant and the suit filed by respondent were ordered to be tried jointly. One of the questions raised in the suit is whether the deed dated 12-4-1950 executed by Ganesan in O.S. 108/50 on the file of the Court of Subordinate Judge, Coimbatore original of Exhibit A-6 creates any charge or was it only an undertaking not to alienate the suit property. On this question the trial Court held at paras 13 and 14 as follows:-

(3.) The appeals filed by the appellant against the said decrees were dismissed by the First Appellate Court holding that the relief of injunction was correctly granted to the respondent. The appellate Court also confirmed the decree for redemption but enhanced the amount payable from Rs. 1501/- to Rs. 5000/-. The appeal of the respondent against non-awarding of costs in the injunction suit by the trial Court was dismissed. The appellate Court on the nature of document at Exhibit A6 observed as follows: