K NARAYANA RAO Vs. MEENAKSHI VELU

JUDGEMENT

(1.) THERE are two appeals before us, one arising out of a suit for specific performance which had been decreed and the other, for redemption of a mortgage which was dismissed. The appellant is a third mortgagee who was not a party to the suit for redemption instituted by the mortgagor; but, by leave of this court, he preferred these appeals. The third mortgagee was, however, a party to the suit for specific performance. One Kasturi Sakuntala mortgaged to one V. Ranganathan chetti on 6-3-1956 for Rs. 13,200/ -. The deed of mortgage reserved to the mortgagee a power of sale under Section 69 of the Transfer of Property Act. Though there was a suit to prevent the exercise of the power of sale, the mortgagee eventually, through auctioneers, exercised his power of sale and accepted the highest bid of Rs. 52000. The purchaser immediately paid Rs. 13000 into the hands of the auctioneers. The balance of Rs. 3900 was paid by the purchaser on 1-3-1963, and it is not in dispute that a fair sale deed engrossed on stamp paper was drawn up on 15-3-1963. On that day, the mortgagor instituted o. S. No. 605 of 1963, which was converted into C. S. 193 of 1963, for redemption. She claimed that the sale held in execution of the power of sale under the deed was invalid and she had still the right of redemption. The second mortgagee, one swarnakumari, was impleaded as a defendant. Pending the suit, an interim injunction was granted. The purchaser, at the same time, instituted O. S. No. 175 of 1963 for specific performance. As indicated earlier to this suit the second and third mortgagees were made parties. Ramamurti, J. , who tried both the suits together, granted specific performance and declined to allow redemption.

(2.) THE two appeals thus turn on the question whether the right of redemption in these circumstances subsisted so that the mortgagor could redeem the mortgage. As we mentioned, it is not the mortgagor who has filed these appeals, but the third mortgagee. But that, we think, can make no difference, as the third mortgagee has been granted leave to file the appeals and has the right to redeem up. Ramamurti, J. , differed from Abraham Esra v. Abdul Latiff, AIR 1944 Bom 156 and, on equitable considerations and in the light of Maring (Lord) v. London and manchester Assurance Co. , 1935 Ch 310 was of opinion that the mortgagor had no longer the right of redemption after the auction sale had been held and purchaser had paid the entire purchase money. In fact, we find from the record that, after the money was deposited, the third mortgagee himself applied for distribution of his share which was ordered out of the purchase money.

(3.) MR. V. K. T. Chari for the appellant contends that, since the sale deed in exercise of the power of sale under Section 69 had not been executed yet as required by law, the right to redemption was still available, and it had not been extinguished by any act of the parties. We are, however, unable to subscribe to the view that, only as and when the sale is completed by a registered instrument, extinguishment of the right to redemption is brought about. That certainly is one way by which the right to redemption may be extinguished. But there may be other acts of parties which, in the light off facts and circumstances, may well be held to have extinguished the right to redemption. The right to redemption is not always controlled by conveyance in accordance with law. Section 60 of the Transfer of Property Act defines the right of a mortgagor to redemption. But the proviso to this section suggests that the right conferred by the section may be extinguished by act of parties or by decree of court. We are not, in these appeals, concerned with the sales in enforcement of mortgages through court. In passing, we may say that, in such cases, until confirmation of court sales, the right to redemption subsists, in view of the specific provision in the Code of Civil Procedure.