RUKKUMANI AMMAL Vs. KAMACHI AMMAL

JUDGEMENT

(1.) THIS appeal arises out of an obstruction offered by the appellant at the time of delivery to the respondent of certain property, in execution of a mortgage decree. The appellant is a Court auction purchaser; that purchase was in execution of a simple money decree against the debtor. The latter, an agriculturist entitled to the benefit of Act V of 1954 was indebted to a creditor under a promissory note of the year 1950. No suit coma be filed against an agriculturist debtor during the time when Act V of 1954 and the Ordinance which preceded were in force. The prohibition contained in those two enactments was in force from 6-12-1953 to 17-1955. The legislation also provided safeguards to the creditor who was prevented from filing a suit for recovery of his dues. Section 6 which is one of these provisions says:

(2.) THE debtor did not, however, conform to the terms of Section 6, which I have extracted above. He created a mortgage over the property on 21-7-1954, during the time when the said Act was in force. The mortgagee instituted O. S. No. 5 of 1957 on the basis of the mortgage and obtained a decree. The decree was duly put in execution, and, in the sale that was held on 31-7-1958 the respondent a third party became the purchaser. It will be noticed that the sale under the mortgage decree took place about a week after the sale in execution of the small cause simple money decree referred to above.

(3.) TWO matters have to be noticed now. (1) The mortgage was created by the debtor before the execution proceedings under the simple money decree in S. C. S. No. 296 of 1955 were started. The mortgage was, however, contrary to the prohibition contained in Section 6 of Act V of 1954, (2) The purchase by the appellant under the simple money decree was subsequent to the institution of the mortgage suit, which was made on 4-1-1957. Normally, the Court-sale in favour of the appellant will not avail against the purchaser under the mortgage decree both by reason of the tact that the title of the latter will go back to the date of the mortgage and also on the principle of lis pendens.