UMA KHANNA Vs. MADHUR BALA NATH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed by the defendant in a suit which appears to have been pending since 1995 and aggrieved from an order dated 15th May, 2009 dismissing the application of the petitioner/defendant under Order 7 Rule 11 of the CPC. From the averments in the petition, it appears that the respondents/plaintiffs instituted the suit against the petitioner/defendant for possession of immovable property being portion of property No.9, Rajpur Road, Civil Lines, Delhi, by redemption etc. The petitioner/defendant after nearly 14 years of the institution of the suit applied under Order 7 Rule 11 of the CPC contending that the respondents/plaintiffs have sold the property and are hence not entitled to continue the suit. It appears that no reply was filed by the respondents/plaintiffs to the said application. The Learned Civil Judge, Delhi before whom the suit was pending, vide order dated 15th May, 2009 impugned in this petition dismissed the application of the petitioner/defendant holding inter alia that the suit as instituted discloses a cause of action and the respondents/plaintiffs have also denied having sold the property and an enquiry could not be conducted into the averments of the petitioner/defendant of the respondents/plaintiffs having sold the property and being thus not entitled to continue the suit.

(2.) The counsel for the petitioner/defendant has relied on Shipping Corporation of India Ltd. Vs. Machado Brothers AIR 2004 SC 2093 laying down that if the subsequent events render the suit infructuous, the court can dismiss the suit after making necessary enquiry into the facts of the case. Reliance is also placed on Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb 2004 (1) RCR (Civil) 216 where the Supreme Court has discussed the implications of transfer of property during litigation without permission of the court and on Sarvinder Singh Vs. Dalip Singh (1996) 5 SCC 539 where a person in whose favour the alienation of the property was made during the pendency of the suit was held not entitled to be impleaded as a party.

(3.) From the memorandum of petition preferred before this Court, it also appears that applications have been filed by the transferees from the respondents/plaintiffs under Order 22 Rule 10 of the CPC for substitution in place of the respondents/plaintiffs. Though the entire suit record is not available but the provisions of Section 52 of the Transfer of Property Act on which the judgments aforesaid have been cited will have no application. The rights of the respondents/plaintiffs to the property and to sell the property, do not appear to be in question or for adjudication in the suit. Thus the pendency of the suit was no bar to the sale by the respondents/plaintiffs of their rights in the property together with the right to redeem the mortgage and the transferees from the respondents/plaintiffs would be entitled to continue the suit. Section 91 of the Transfer of Property Act provides that besides the mortgagor any person after than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property. Upon Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term "mortgagor" and therefore entitled to redeem. On a consideration of the above provisions, the courts have held that the purchaser of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Reference in this regard may be made to Samarendra Nath Sinha Vs Krishna Kumar Nag AIR 1967 SC 1440. Such a right is based on the principle that he steps in the shoes of his predecessor- in-title and has therefore the same rights which his predecessor-in-title had before the purchase. I must, however, add that else, the view of the Supreme Court and the various High Courts is consistent that the right of redemption of mortgage also disappears by sale of the title of the property by the mortgager. Reference in this regard may be made to Narandar Karsondas Vs S.A. Kamtam AIR 1977 SC 774, A. Granam Vs Paraniappa and Co. AIR 1963 Bom. 230. However, the transferee from the mortgager as aforesaid is entitled to continue the suit and applications in which regard appear to have been filed.