SITHARAMA HOLLA Vs. SRINIVASA SOMAYAJI

JUDGEMENT

(1.) This second appeal arises in a suit instituted for recovery of unpaid purchase money, the right to recover it having been purchased by the plaintiff. The defendant claims to be the owner of the property under sale deed Ex. B. 2 dated 12-1-1940. A sum of Rs. 745-7-11 was retained with the purchaser one Mavji Shet under a sale deed Ex. A. 22 dated 26-7-1926 of three items of properties executed by one Subramania Holla. Subramania Holla had earlier mortgaged one of the three items of properties sold under Ex. A. 22 along with other properties to one Seetharama Bhatta under the mortgage deed dated. 30-10-1922. Seetharama Bhatta died and his sons instituted a suit on the mortgage, O. S. No. 132. of 1935. By the time the suit was instituted, the three items of properties together with the sum of Rs. 745-7-11, which was retained for payment of the mortgage, passed into the hands of one Vasudeva Thunga, who was made a party to the mortgage suit. Lakshminarayana Shastry, a subsequent mortgagee was also made a party to the mortgage suit. A preliminary mortgage decree was passed in that suit on 238- 1935 and the final, decree was passed on 30-10-1933. Lakshminarayana Sastry, who was the 5th defendant in the mortgage suit, satisfied the earlier mortgage and brought the properties to sale and himself became the purchaser and obtained the sale certificate Ex. A. 6 dated 13-6-1941 and 18-6-1941. In the meanwhile, Lakshminarayana Sastri attached before judgment the right to recover the unpaid purchase money, namely, Rs. 745-7-11, and the attachment was made absolute by order dated 19-8-1935. In B. I. A. No. 742 of 1943 Lakshminarayana Sastri obtained a personal decree on 6-9-1943 and in R. E. P. No. 330 of 1944 dated 24-7-1944 lie brought the right to recover the unpaid purchase money to sale and the present plaintiff was declared the purchaser under order dated 28-11-1945 in R. E. P. No. 330 of 1944. Notice had gone to the present defendant. He denied the debt. But in spite of that the right was directed to be sold. The lower court was of the opinion that since the defendant had not appealed against that order, that order must be treated as constituting 'res judicata'. The correctness or otherwise of this view need not be canvassed now, as the appeal could be disposed of on other grounds.

(2.) The main question that was argued was as to limitation. The contention of Mr. Adiga is that the amount sought to be recovered being an amount provided to be paid to an encumbrancer by the vendee, the provisions of Section 55 Clause 5(b) of the Transfer of Property Act would be applicable and not Clause 4(b), which deals with unpaid, purchase money as such Section 55, Clause 5(b) is as follows:

(3.) I am unable to see how Lakshminarayana Sastri, 5th defendant in O. S. No. 132 of 1935, in pursuance of his right to have a personal decree having attached the right to recover this amount before judgment and the attachment having been subsequently made absolute, was prevented from bringing that right to recover the amount to sale. The proceedings in R. I. A. No. 742 of 1943 and the subsequent proceedings in R. E. P. No. 330 of 1944 have been perfectly legal and the plaintiff, who under Ex. A. 19 was declared the purchaser of that right, is entitled to recover that amount from the property which came into the hands of the defendant and which property is subject to that charge.