ARUNACHALAM VANAMOORTHI KONAR Vs. KOCHUMMEN GEEVARGHESE

JUDGEMENT

(1.) THIS is an appeal by the legal representative of the first defendant from the judgment of a learned judge of this Court in a Second appeal. The suit was for recovery of possession of an item of landed property from the first defendant on payment of an amount alleged to be due to him as a charge on the suit property and also for incidental reliefs.

(2.) THE property belonged to the third defendant who had hypothecated it to the State of Travancore in 1098 M. E. for a money loan. When the State took proceedings to recover the loan, the Travancore National Bank Ltd. , who was a subsequent mortgagee of the said property, paid the debt to the State, and thereby became subrogated to the rights of the State of Travancore under the hypothecation of 1098. In 1099, the second defendant obtained a money decree as O. S. 405 of 1099 against the third defendant; and in execution of that decree, he attached certain properties of the judgment-debtor including the suit property and purchased them in court sale. THE suit property was taken delivery of by the second defendant as per two delivery receipts Exts. F (1)dated 15 31108 and Ex. F dated 25 51108. THE Travancore National Bank Ltd. , instituted O. S. 145 of 1107 against the third defendant for the money due under the hypothecation of 1098 to which it had become subrogated. It obtained a decree on 141107 and purchased the property in execution of that decree. Ex. IV dated 19 111112 is the sale certificate. THE Bank applied for delivery of possession of the property pursuant to Ex. IV, which was obstructed by the second defendant. THE obstruction was disallowed; and the property was delivered over from the second defendant's possession to the Bank by the court on 29-12-1115. Ex. II is the delivery receipt. THE Bank sold this property to one Karayalar, from whom the first defendant purchased it as per Ex. V dated 10-7-1120. THE second defendant sold his rights under the sale certificate in o. S. 405 of 1099 to the plaintiff on 1611 1122 as per Ex. E. THE plaintiff then instituted the present suit for recovery of possession of the suit property on payment of the debt due under the hypothecation of 1098 which the State of travancore had on the property and to which the Travancore National Bank Ltd. , became subrogated, and for other reliefs as already stated.

(3.) THE decision of the Privy Council in Bijai Saran v. Prasad AIR. 1929 Privy Council 288 is an authority for the position that a simple mortgagee who is in possession of the property under an invalid sale cannot resist an action for recovery of the property by setting up the mortgage as a defence. THE Judicial Committee said that whatever rights the defendant had under the mortgage, he can enforce in proper proceedings taken for that purpose, but there was no principle or authority which enabled the defendant to set up his mortgage against the plaintiff's claim for possession, because the defendant was not in possession of the property under the mortgage. Converse is the case here. THE appellant, not being in possession of the property under any mortgage, the first respondent cannot recover possession of the same on redemption of the mortgage. THE decision of the Patna High Court in Baiju Lal v. Thakur Prasad AIR. 1939 Patna 7 is exactly in point. THE facts of the case were very similar to the case before us, and in that case THEir Lordships stated: "the mere fact that in the present suit the plaintiffs seek to recover possession upon redemption can be no ground for holding that they do not claim the right to the present possession of the disputed properties. In fact possession is the substantial relief claimed. In my opinion, the present suit is one under 0. 21 R. 103 Civil P. C. and not having been brought within one year it is barred by limitation".