MADURAMMAL Vs. K. GUNASEKARAN

JUDGEMENT

(1.) This Second appeal is filed against the Judgement and decree of the II Additional District Judge, Puducherry in A.S.No.76 of 2018 confirming the order in E.A.No.49 of 2010 in E.P.No.51 of 2009 on the file of the Additional Subordinate Judge, Puducherry.

(2.) Before dealing with E.A.No.49 of 2010, the background which leads to filing of this petition has to be narrated for better understanding of the dispute involved in this case. On 10/6/1985, one Sundaramurthy purchased the properties measuring 27 kuzhies and 41/2 Veesams in S.No.46/9-, an extent of 1 kuli 14 Veesam in S.No. 48/7 and 71 kuzhies and 71/2 veesams in S.No.68/2 in Poraiyur Village in Villiyanur Sub District in Pudhuvai District. Among these properties, we are concerned with 71 kuzhies and 71/2 veesmas in S.No.68/2. Sundaramurthy died intestate on 24/3/1988, leaving behindthe appellants and respondents 3 and 4 as legal heirs. On 25/4/1994, the respondents 3 and 4, had mortgaged 40 kuzhies out of 71 kuzhies and 71/2 veesams in S.No.68/2 in favour of the 2nd respondent. The said Mortgage was a registered one and the Mortgage amount was Rs.20,000.00. The date of Mortgage is 25/4/1994. The period of Mortgage was three years. It appeaRs. that the respondents 3 and 4 had not repaid the loan amount to redeem the mortgage within the fixed period. Therefore, the 2nd respondent filed a suit in O.S.No.272 of 2001 on the basis of Mortgage. The suit was decreed on 28/11/2001 and the preliminary decree was passed. Then the 2nd respondent filed I.A.No.401 of 2002 in O.S.No.272 of 2001 for passing final decree. This petition was allowed and final decree was passed on 7/10/2002. Then he filed E.P.No.158 of 2002 in O.S.No.272 of 2001 for selling the mortgaged property. The appellants 4 to 6 filed E.A.No.143 of 2005 under Order XXI Rule 58 r/w. Sec. 151 of C.P.C., to raise order of attachment. Subsequently, they have not pressed the petition and it was dismissed as not pressed on 3/3/2005. Again, they filed E.A.No.178 of 2005 under Order XXI Rule 58 of C.P.C., and that was also dismissed as not pressed on 18/4/2005. In E.P.No.158 of 2002 the sale was conducted and in the salethe 1st respondent was the successful bidder and the sale was confirmed in his favour and accordingly the sale certificate was issued. Thereafter, all the appellants filed E.A.No.343 of 2008 under Order XXI Rule 90 r/w.151 of C.P.C., to set aside the auction sale conducted on 10/4/2008 and E.A.No.344 of 2008 to restrain the respondents to act on the auction sale took place on 10/4/2008. Then the 1st respondent filed E.P.No.51 of 2009 for taking delivery of the property purchased in the Court auction sale.

(3.) E.A.Nos.143 of 2005, 178 of 2005, 343 of 2008 and 344 of 2008 have all been filed primarily on the ground that the appellants are entitled to 1/8* share each in the properties left by Sundaramurthy along with respondents 3 and 4. However, the respondents 3 and 4 have mortgaged 40 kuzhies out of 71 kuzhies and IVi veesems, which is in excess of their share. Therefore, the suit filed in respect of 40 kuzhies on the basis of the mortgage, mortgage decree, Court auction sale are not valid. Therefore, the Court auction sale will not bind their right in the property. While E.A.Nos.143 of 2005, 178 of 2005 were dismissed as not pressed, E.A.Nos.343 of 2008 and 344 of 2008 have been dismissed for non prosecution. It appeaRs. that duringthe pendency of E.A.Nos.143 of 2005 and 178 of 2005, the appellants 3 to 6 have filed O.S.No.71 of 2011 seeking the relief of partition in the total extent of 71 kuzhies and 71/2 veesams, and restraining the 1st respondent from taking possession of B Schedule property, that is, 40 kuzhies covered under Mortgage decree and for other reliefs.