KHADER KHAN SAHIB Vs. DORAISWAMI CHETTIAR

JUDGEMENT

(1.) THE plaintiff in the suit is the appellant before us. The question that arises in this Letters Patent Appeal is whether the plaintiff is entitled to be compensated by the first defendant under Section 70 of the Contract Act. The suit property originally belonged to one Rahmat Bee. She had mortgaged the same to one Abdul azeez under the deed dated 5-7-1946. One Perumal Udayar, a simple money creditor of Rahamat Bee as well as her husband obtained a decree in O. S. No. 520 of 1952 on the file of the court of the District Munsif, Namakkal and brought the suit property to sale subject to the above said mortgage in favour of Abdul Azeez. In the court auction sale held the first defendant in the present suit, out of which this Letters Patent Appeal arises, purchased the property subject to the mortgage in favour of Abdul Azeez dated 5-7-1946. The said Abdul Azeez brought a suit on his mortgage in O. S. No. 315 of 1958 on the file of the Court of the District Munsif, namakkal, impleading the first defendant herein also as a party defendant, he having purchased the equity of redemption in the court sale in pursuance of the money decree in O. S. 520 of 1952. The defendants 2 to 4 in the present suit, are the children of Rahmat Bee, the original owner of the property and they as well as their father had also been impleaded a party defendants in the mortgage suit filed by Abdul Azeez. By the time the said mortgage suit was filed, an appeal by the judgment-debtor in the money decree (O. S. No. 520 of 1952) had been allowed and the money decree in pursuance of which the first defendant had purchased the property in court auction had been set aside. The plaintiff in the abovesaid money suit (O. S. No. 520 of 1952) had filed a second appeal to this court in S. A. 605 of 1958 and that came to be allowed eventually on 4-2-1961. But the position when the mortgage suit was filed by Abdul Azeez was, that the decree in the money suit stood set aside. Though the first defendant herein had taken possession of the property in pursuance of the court sale in execution of the abovesaid money decree and he was vitally interested in redeeming the earlier mortgage in favour of Abdul Azeez, he remained ex parte in the mortgage suit brought by the said Abdul Azeez. It would appear that the first defendant thought that by the money decree having been set aside, on appeal by the judgment-debtors in O. S. No. 520 of 1952, the court sale in his (first defendant's) favour would become ineffective.

(2.) THE mortgage suit by Abdul Azeez (O. S. No. 315 of 1958) was decreed on 30-91958. There was an execution proceeding in pursuance of the mortgage decree. The court sale, in pursuance of the abovesaid mortgage suit, was avoided by the plaintiff herein (appellant before us) advancing a sum of Rs. 3,000 on a mortgage of the same property executed by defendants 2 to 4 herein. The consideration for the mortgage is Rs. 3,000 and the entire sum had gone in discharge of the mortgage of Abdul Azeez.

(3.) IN the present suit on the mortgage for Rs. 3,000 executed by defendants 2 to 4 (Ex. A-1 dated 30-9-1959), the plaintiff impleaded the first defendant and claimed relief against him also in respect of the said sum of Rs. 3,000. The plaintiff relied on Section 69 as well as Section 70 of the Indian Contract Act in order to get relief against the first defendant. The trial court refused to accept the case of the plaintiff as against the first defendant and dismissed the suit as far as he was concerned. On appeal by the plaintiff, the first appellate court allowing the appeal granted a decree in favour of the plaintiff as against the first defendant also. Against that, the first defendant filed S. A. No. 1869 of 1964 on the file of this court and Alagiriswami J. has allowed the second appeal holding that the plaintiff cannot get relief as against the first defendant either by virtue or Section 69 or by virtue of Section 70 of the Indian Contract Act.