PODIYAN NADAR ARULAPPAN NADAR Vs. KUMARAN PALPAN

JUDGEMENT

(1.) This is an appeal by an assignee decree holder auction purchaser against an order upholding obstruction to the delivery of property purchased by him. The mortgage put in suit was a second mortgage, and defendant 3 was on the date of the suit the holder of a decree obtained on the first mortgage. For aught we know his priority was not sought to be displaced in the puisne mortgagees suit. The obstruction is one caused by a purchaser in execution of the prior mortgage decree and when the sale in execution of the puisne mortgagees decree took place the purchaser at the prior mortgagees sale was already in possession. So long as the prior claim of defendant 3 was not impugned in the puisne mortgagees suit we cannot bring ourselves to hold that the lower courts order upholding the obstruction is wrong. The contention that defendant 3 ought to have set up his prior claim when the puisne mortgagee had made him a party is clearly opposed to the view the Judicial Committee took in Radha Kishun v. Khurshed Hossein (1920) ILR 47 Cal. 662. He had no such duty unless his priority was challenged.

(2.) The appellants learned counsel invited our attention to a division Bench Ruling of the Travancore High Court reported in Thomman v. Ouseph (1948 Travancore Law Reports 473) in support of his contention that Defendant 3 ought to have set up his prior claim in the puisne mortgagees suit and not having chosen to do so his priority was lost with the result the purchaser in execution of his decree cannot resist delivery. In that case the learned Judges found that the puisne mortgagee had impliedly denied the prior mortgagees rights and if that were true the decision does not run counter to the Privy Council decision referred to above. At the same time we desire to state we cannot see eye to eye with the observations occurring in paragraph 4 of the judgment in that case to the effect that if a prior mortgagee who is made a party to the puisne mortgagees suit omits to set up his prior lien he loses his priority on that account alone. The decision in Radha Kishun v. Khurshed Hossein (1920) ILR 47 Calcutta 662 is clear authority for the position that the priority will not be displaced unless it was impugned.

(3.) Mr. Varadaraja Iyengar, the learned counsel for the appellant contended that in any view of the matter Respondent 2 who caused the obstruction had no locus standi in as much as he had released all his rights in favour of defendant 3. We do not think that for the purpose of the present appeal we should take serious notice of the frequent change of hands of the rights of the prior mortgagee. The appellants definite case is that Respondent 2 is only a benamider for defendant 3 who is Respondent 1 in this appeal. Suffice it to say for the present that it is a prior mortgagee auction purchaser or the person standing in his shoes that resists delivery. In the circumstances of the case the lower court rightly upheld the obstruction. We therefore dismiss the appeal with costs.