NARAYAN GOVIND ANIKHINDI Vs. KRISHNAJI

JUDGEMENT

(1.) The above appeal is filed against the judgment and decree passed in Spl.C.S.No.19 of 1964 on the file of the Civil Judge, Bijapur.

(2.) The case of the plaintiffs in the above suit is as follows: One Krishnaji Kulkarni had five sons by name Srinivasa, Ramachandra, Bhimaji (plaintiff 4), Narayan (plaintiff 5) and Vaman (plaintiff 6) . Srinivasa died leaving behind him his widow Bhimabai (plaintiff 7) and Ramachandra died leaving behind him three sons by name Krishnaji (plaintiff 1), Laxman (plaintiff 2) and Venkaji (plaintiff 3) . The first above named Krishnaji mortgaged with possession the properties described in the schedule attached to the plaint on 12-12-1929 for a sum of Rs.9,000 only in favour of one Waman Gadgil. The said Waman Gadgil sold his right, title and interest in the suit properties on 28-8-1938 in favour of one Jaganath Asharam Marwadi (hereinafter referred to as Jagannath). Jagannath had two daughters by name Kamobai and Gopubai. Gopubai died leaving behind her only son Radheshyam (defendant 2). After the death of Krishnaji, the mortgagor abovenamed, Ramachandra, father of plaintiffs 1 to 3 instituted a suit in Civil Suit No.200 of 1947 on the file of Second Class Sub-Judge in the former princely State of Jamkhandi under S.16 of the Jamkhandi Agriculturists. Relief Act (Act 1 of 1939) (hereinafter referred to as the Act) against Waman Gadgil and Jagannath for accounts in respect of the suit mortgage. Plaintiffs 4 to 6 and Srinivas, husband of plaintiff 7 were also impleaded as defendants in that suit. The said suit ultimately ended in a preliminary decree for redemption of the mortgage and a final decree for possession was passed in favour of the pfaintiffs therein. Pursuant to the said final decree, possession of the properties were taken by the plaintiffs therein on 14th and 15th of April, 1962. It appears that during the pendency of the proceedings which were commenced in C.S.No.200/47, defendants 1 and 2 had mortgaged the suit properties in favour of defendant 3 under a mortgage deed dt.10-8-1953. Defendant 4 is the natural son of defendant 3 and defendant 5 is a grandson of defendant 3. Defendant 4 had been given away in adoption to one Govind belonging to the same family. As defendants 3 to 5 were all interested in the said mortgage deed executed in favour of defendant 3 on 10-8-1953 by defendants 1 and 2, they instituted a suit in Spl.C.S.No.20 of 1959 on the file of the Civil Judge, Bijapur for a decree for sale of the suit properties on the basis of the mortgage deed executed in their favour. The said suit having been decreed, they instituted execution proceedings in Dharkhasth No.2 of 1963 for getting the properties sold. At that stage, the plaintiffs filed an application before the Civil Judge stating that defendants 3 to 5 could not get the suit properties sold as they had no right to do so, and that, therefore, the excution proceedings should be stayed. The said application was rejected on the ground that it did not lie under S.47 CPC. The plaintiffs thereafter filed the above suit for a declaration that the decree obtained by defendants 3 to 5 in SCS. No.20/59 against defendants 1 and 2 and others was not binding on them and for permanent injunction restraining defendants 3 to 5 from executing the said decree against the suit properties. Defendants 1 and 2 did not contest the suit.

(3.) Defendant 4 filed a written statement which was adopted by defendants 3 and 5, containing the following allegations: That defendants 3 to 5 had no knowledge of proceedings commenced with CS.No.200/47 until an application was filed by the plaintiffs in the execution proceedings instituted by defendants 3 to 5 pursuant to the decree in SCS. No. 20/59: that the plaintiffs were not in possession of the suit properties, and that the suit was not maintainable since the plaintiffs had no subsisting right, title and interest. in the suit properties. One Bindo Govinda Pothe had obtained a money decree against Krishnaji the mortgagor abovenamed and his sons and the said decree was assigned in favour of one Gajanana Krishna Gadgil and from Gajanana Krishna Gadgil, Wamana Krisnna Gadgil the mortgagee under the document dt. 12-12-1929, acquired the right to the said decree. Thereafter Waman Krishna Gadgil sued out, execution of the said decree. The Court transferred the said decree to the Mamlatdar of Jamkhandi under S.68 of the CPC for selling equity of redemption in the suit properties. In the execution sale held by the said Mamlatdar, Waman Krishna Gadgil the mortgagee, purchased the equity of redemption in the suit properties. The said sale was confirmed on 8-3-1938. Thus Waman Krishna Gadgil became the full owner of the suit properties. Thereafter he sold his right, title and interests in the suit properties in favour of Jagannath under a sale deed dt. 26-8-1939., On the death of Jagannath, defendants 1 and 2 became the absolute owners of the suit properties. On 10-8-1953 defendants 1 and 2 executed a mortgage in favour of defendant 3 for a sum of Rs.23,500. Because defendants 1 & 2 did not pay the amount due under the mortgage, defendants 3 to 5 instituted SCS.No.20/59 against defendants 1 and 2 and some others for the sale of the properties in order to realise the mortgage debt. A preliminary decree was passed in the said suit, on 23-12-1960 and a final decree for sale was passed sometime thereafter. In the course of the proceedings in Spl.D.No.2/63 instituted by defendants 3 to 5 for the sale of the properties mortgaged in their favour, the plaintiffs filed an application for stay of the same as already mentioned and that application was dismissed. In the aforesaid circumstances it was pleaded that the plaintiffs who had lost their equity of redemption in the suit properties by virtue of an execution sale pursuant to a money decree chained by Bindo Govinda Pothe, the plaintiffs had no subsisting right in the suit properties. It was next pleaded by defendants 3 to 5 that the mortgage in favour of defendant 3 and the decree obtained by them on the foot of the said mortgage, were not hit by the rule of lis pendens because, (i) the proceedings commenced with CS.No.200/47 on the file of the Jamkhandi. Court were collusive and (ii) that the title to thesuit properties were not directly and specifically in question in the said proceedings. It was also claimed that defendants 3 to 5 who were not parties to the proceedings commenced with CS.No.200/47, were not bound by the same. Hence they submitted that the suit was liable to be dismissed.