DEVASIA ANNA Vs. MEETHIAN HAINAN METHARU

JUDGEMENT

(1.) The 3rd defendant in O. S.299 of 1955 and O. S.298 of 1955 is the appellant in these second appeals.

(2.) The owner of the property in question in the suits had executed an usufructuary mortgage to one Kelan Kochu Kunju. Kochu Kunju hypothecated the mortgage right to the predecessor-in-interest of the plaintiff in O. S. No: 298 of 1955 in 1089, and subsequently to the plaintiff in O. S. No. 299 of 1955 and thereafter to the 1st defendant in O S. No. 299 of 1955 and O. S. No. 298 of 1 )55 in the year 1097. The predecessor-in-interest of the plaintiff in O. S. No. 298 of 1955 filed O. S. No. 512 of 1105 on the foot of the hypothecation bond and obtained a decree. The plaintiff in O. S. No. 299 of 1955 filed a suit as O. S. No. 513 of 1105 on the foot of the hypothecation bond in his favour and also obtained a decree. The 1st defendant was not a party to these decrees. The 1st defendant had filed O. S. No. 141 of 1102 on the basis of the hypothecation bond in his favour and obtained a decree. The prior hypothecatees, namely, the plaintiffs in O. S. Nos. 299 and 298 of 1955, were not parties to that decree. Thereafter the 1st defendant executed the decree and purchased the mortgage right in the property on 2 5 1110 and took delivery of the property on 15 8 1110. The decree holders in O. S. Nos: 512 and 513 of 1105 purchased the very same right in the property on 18 10 1119 and 14 2 1113 respectively in execution of their decrees. The equity of redemption in the property became vested in one Thommen Ouseph. The 3rd defendant in O. S. Nos: 298 and 299 of 1955 got an assignment of the equity of redemption benami in the name of the 2nd defendant in these cases under Ext P-5 on 23 9 1950 and 2nd defendant filed a suit for redemption of the mortgage as O. S. No. 120 of 1950. There was a compromise decree, Ext. P 7, by which the property was allowed to be redeemed by the plaintiff, namely, the 2nd defendant. Subsequently, the 2nd defendant transferred his nominal right in the property to the 3rd defendant.

(3.) The decree holders in O. S. Nos: 512 and 513 of 1105 did not get delivery of the property as the 1st defendant, as earlier auction purchaser in execution of his decree got possession of the property and was in possession. So, the present suits were filed by the decree holder auction purchasers in O. S. Nos: 512 and 513 of 1105 for redemption of the property or for sale and realisation of the hypothecation amounts due to them. The suits were decreed by the Trial Court allowing the plaintiff to recover the amounts by sale of the property. Appeals were filed against the decrees by the 3rd defendant. The appellate court confirmed the decrees of the Trial Court.