CHACKO Vs. PADMANABHA PILLAI

JUDGEMENT

(1.) The defendant in O.S. No. 304 of 1123 of the District Munsiffs Court of Thodupuzha is the appellant in this second appeal. The plaint property is 28 cents of land out of a property measuring 59 cents. The entire property belonged to one Mathai Iype. He hypothecated the plaint property (28 cents) to the plaintiff on 4-12-1103, and then he hypothecated the entire property (59 cents) to the defendant in 1106. On his hypothecation bond, the plaintiff obtained the decree in O. S. No. 476 of 1110 and purchased the plaint property in court auction on 18-6-1117. The sale was confirmed on 15-3-1118. The defendant, who was not a party to O. S. No. 476 of 1110, filed a suit on his hypothecation bond in O. S. No. 9 of 1119; and in execution of the decree obtained by him in that suit he purchased the entire property (the plaint property of 28 cents and the remaining 31 cents) on 5-3-1120 for Rs. 473 Chs. 8 Cash 8. The plaintiff was not a party to O. S. No. 9 of 1119. After the defendant got possession of the property in pursuance of the court sale in O.S. No. 9 of 1119 plaintiff applied for delivery of possession of the plaint property (28 cents) which he had purchased in execution of the decree in O.S. No. 476 of 1110. The defendant obstructed the delivery contending that he was in possession of the property in his own right under the court sale in O.S.No. 9 of 1119, and the execution court allowed his obstruction petition and dismissed the plaintiff's application for delivery. Thereupon the plaintiff filed O.S.No. 304 of 1123 for redeeming the defendant and recovering the possession of the plaint property with mesne profits on payment to him of the proportionate sale amount in O.S. No. 9 of 1119. As proportionate sale amount the plaintiff offered Rs. 223-9 Chs. 6 Cash and he claimed 25 paras of paddy per year as mesne profits. The defendant contended that the decree and execution proceedings in O.S. No. 476 of 1110 were not binding on him and that the plaintiff was not competent to redeem him and get possession of the plaint property. He also offered to redeem the plaintiff and pay the principal amount under the hypothecation bond of 1103 and 50 per cent thereof as interest. The Trial Court held that the plaintiff had a right to redeem the defendant and gave a decree to him for recovering possession of the property (28 cents) on payment of the proportionate sale amount offered by him. It also allowed him to recover mesne profits at the rate of 25 paras of paddy per year. On appeal the District Judge of Parur confirmed the Trial Court's decree in so far as it allowed the plaintiff to redeem the defendant and recover possession of the property on payment of the proportionate sale amount in O. S. No. 9 of 1119, but reduced the mesne profits awarded to him from 25 paras to 15 paras of paddy per year. Against the decree allowing the plaintiff to recover possession of the property, the defendant has filed this appeal. His contention here is that he should have been allowed to redeem the plaintiff and retain possession of the plaint property.

(2.) In support of his claim to redeem the defendant and get possession of the plaint property the plaintiff relied on the Full Bench decision in Varghese v. Sanku 29 TLJ 263. It was held in that case that where the puisne hypothecatee auction purchaser is the later purchaser, he must file a suit to redeem the prior mortgage and that in that case the prior mortgagee auction purchaser will have the right to redeem the subsequent mortgagee auction purchaser. Although the above rule was laid down in Varghese v. Sanku 29 TLJ 263, with reference to a case in which the prior mortgagee auction purchaser was in possession of the property I do not see why the same principle should not apply also to a case in which a puisne mortgagee, whose purchase is subsequent to that of the prior mortgagee, is in possession. The puisne mortgagee would no doubt be entitled to redeem the prior mortgagee. But by virtue of the earlier court sale the prior mortgagee would obtain the ultimate equity of redemption which belonged to the mortgagor, and as owner of that equity of redemption he would be entitled to redeem the subsequent mortgagee. Two principles clearly laid down in Varghese v. Sanku 29 TLJ 263 were (i) that the doctrine of lis pendens does not apply to legal proceedings to enforce mortgages and (ii) that the first purchaser will be entitled to possession as against the later purchaser (vide XXIX TLJ 263 at p. 274). The appellant's counsel contended that as the defendant was not impleaded in the suit filed by the plaintiff the decree and execution proceedings therein would not be binding on the defendant, and that the plaintiff cannot therefore urge as against him that he has become the owner of the ultimate equity of redemption. According to the learned counsel, the defendant has become the owner of the equity of redemption by virtue of the court sale and purchase in O. S. 9 of 1119. But the defendant also had not impleaded the plaintiff in his suit. In Abdul Gafoor v. Sagun Choudhary AIR 1952 Patna 321, wherein also a similar contention was put forward, it was held:-

(3.) Even some of the cases relied upon by the defendant's counsel support the decision of the courts below. In Varughese v. Anantha Iyen 1944 TLR 1, it was held that a puisne mortgagee's right as against the prior mortgagee is to redeem him and no more, and that he can only claim that the proceedings in court to which he was not a party cannot operate on his interests or extinguish them. It was further held in that case that the puisne mortgagee cannot contend that the proceedings taken by the prior mortgagee against the mortgagor amounted to a nullity and that he cannot also ignore the lights of the prior mortgagee in the form and with the incidents into which they have matured when he brings the property to sale. In support of his contention that the puisne mortgagee is entitled to redeem the prior mortgagee and that the latter cannot claim anything more than redemption of his mortgage the appellant's counsel relied upon a sentence in that case (appearing at page 31) which reads: "As the purchase (puisne mortgagee's) is subject to the rights of the prior encumbrancer he will have the right to compel the puisne encumbrancer to redeem him by instituting a suit therefor. But the judgment read as a whole, and even the paragraph in which that sentence appears, would show that it is open to the prior mortgagee either to redeem the puisne mortgagee or to compel the latter to redeem him, and that the sentence relied upon by the appellant's counsel only makes a reference to the latter of the above two rights of the prior mortgagee auction purchaser and does not negative his right to redeem the puisne mortgagee. Dattatraya v. Daulata AIR 1950 Bom. 136, relied upon by the appellant's counsel, was not a case in which the question of the prior mortgagee auction purchaser's right to redeem the puisne mortgagee auction purchaser arose for decision. The question that had to be decided therein was whether the Collector was right in dispossessing the puisne mortgagee on the strength of a decree obtained by the prior mortgagee to which the puisne mortgagee was not a party. Since the Collector was not right in doing so the puisne mortgagee was ordered to be put back in possession. But even in that case occur the following observations which support the decision in AIR 1952 Patna 321 mentioned above: