RAMASWAMI GOUNDER, SON OF APPACHI GOUNDER AND ORS. Vs. RAMASWAMI GOUNDER SON OF SANKARA GOUNDER AND ORS.

JUDGEMENT

(1.) The appellants, who were plaintiffs 1 to 4 in the trial Court, instituted a suit against defendants 1 to 6 (respondents 2, 1 and 3 to 6) for redemption of a simple mortgage dated 8th July, 1949 for Rs. 1,600. This mortgage had been granted by defendants 3 to 6 and one minor Ramasamy Gounder, represented by his guardian, the third defendant, in favour of the first defendant in respect of 6 acres, 43 cents of land. Subsequent to the date of the mortgage, the fifth defendant sold 5 cents out of the hypotheca in favour of the first plaintiff for Rs. 600 on 17th September, 1962. On 22nd October, 1962, the fourth defendant sold 5 cents out of the hypotheca in favour of the second plaintiff under a registered deed of conveyance. On 19th November, 1962, defendants 3 to 6 conveyed 10 cents out of the hypotheca in favour of the plaintiffs 3 and 4 under a registered deed of conveyance. Some time in 1963, that is to say, after these three conveyances relating to small portions of the hypotheca, the first defendant mortgagee instituted O.S. No. 648 of 1963 on the file of the District Munsif's Court, 'Gobichettipalayam, for recovery of the money due under the mortgage dated 8th July, 1949. Evidently, by inadvertence he failed to implead in the suit the subsequent alienees of parts of the hypotheca, viz., the plantiffs 1 to 4. The mortgagee obtained a preliminary decree, and then a final decree, and in execution of the final decree, brought all the items of the hypotheca including the alienated items to sale. At a judicial sale held on 16th January, 1967, the second defendant, who was a third party to the proceedings, purchased all the items of the hypotheca for Rs. 3,500 and obtained delivery of possession (Vide Exhibit B-2 dated 18th December, 1967). Later, the plaintiffs, who were subsequent purchasers of portions of the hypotheca, instituted the suit for redemption out of which this appeal arises. The basis of their claim was that inasmuch as they had not been impleaded as parties to the mortage action the decree and sale in O.S. No. 648 of 1963 were not binding upon them, and that they were entitled to redeem the entire suit items although they were purchasers of part only of the equity of redemption from the original mortgagor. The learned District Munsif granted the plaintiffs a preliminary decree as prayed for with costs. Against this judgment and decree of the trial Court the second defendant preferred an appeal in A.S. No. 193 of 1968 on the file of the Sub-Court, Erode. The learned Subordinate Judge held that though the plaintiffs were not impleaded in the mortgage action, they were entitled to redeem, not the whole of the mortgage, but only the shares that had been alienated in their favour. Upon this view, the first appellate Court set aside the judgment and decree of the trial Court and remanded the suit to the trial Court with a direction to pass a revised preliminary decree after determining the amount payable by the plaintiffs towards the suit mortgage for redemption of their share only. It is against this order of remand that the present civil miscellaneous appeal has been filed.

(2.) The intriguing question that arises for consideration is whether the subsequent purchaser of the equity of redemption in a part of the hypotheca, who had not been impleaded as a party to the mortagage action filed by the mortgagee, is, after the mortagage decree has resulted in Court sale in favour of a third party, entitled to redeem the whole of the mortgage, or only part of the hypotheca, purchased by him. Rule 1 of Order 34, Civil Procedure Code provides: