LAWS(MAD)-1980-7-14

P SENGOTTIAN Vs. B LAKSHMI

Decided On July 24, 1980
P. SENGOTTIAN Appellant
V/S
B. LAKSHMI Respondents

JUDGEMENT

(1.) THIS is an appeal by the first defendant against the judgment and decree of the learned principal Subordinate Judge of Salem, in O. S. No. 26 of 1974 on the file of lis Court. The suit was originally instituted for a declaration of the plaintiff's title to the suit property and for an injunction restraining the first defendant, who was the only defendant at that time, from interfering with the possession of the suit house by the plaintiff. Subsequently, the plaint was amended, and the plaintiff sought recovery of possession.

(2.) THE suit was not decreed either for injunction or for possession, but was decreed for recovery of the mortgage amount due under a document dated 22nd August, 1960 (marked as Exhibit A-2) with interest thereon from the date of the mortgage. By the decree drafted in accordance with the judgment, the first defendant was directed to pay the plaintiff a sum of Rs. 12,700. Impugning the judgment and decree of the learned Subordinate Judge this appeal has been preferred by the first defendant, who is the Court-auction-purchaser in pursuance of a decree obtained by the second defendant.

(3.) ON 2nd November, 1972, the suit house was sold in execution of the decree obtained by T. K. Subramaniam in O. S. No. 279 of 1969. The first defendant purchased the suit house in Court-auction. Exhibit B-1, the sale certificate dated 1st December, 1973, was issued in his favour. When the first defendant attempted to take possession through Court, obstruction was offered by the plaintiff, it would appear that the warrant of delivery was re-issued, and the first defendant ultimately took possession on 12th January, 1974. A week prior to the first defendant taking delivery viz., on 5th January, 1974, this suit was filed for a declaration of the plaintiff's title to the suit property and an injunction as aforesaid. After the first de-defendant took possession, the plaint was amended seeking the relief of possession. The contention of the plaintiff was that the sale in Court-auction does not prevail over the sale in his favour despite the earlier attachment.