P.GURUSAMY Vs. RAMASUBRAMANIAM

JUDGEMENT

(1.) The plaintiff in O.S No.14 of 2014 on the file of the Sub Court, Sivakasi is the appellant herein. The suit was filed for the relief of declaration and recovery of possession.

(2.) The suit property originally belonged to defendants 1 to 10. They had mortgaged the property in favour of one Kutralinga Moopanar vide registered mortgage deeds dtd. 12/3/1960 and 28/11/1961. The mortgagee dues were not cleared. The mortgagee had passed away and his legal heirs filed O.S No.52 of 1973 for recovery of the amount due under the mortgage deeds. Preliminary decree was passed on 11/12/1973 and final decree was passed on 7/9/1974. Up to this point, there is no controversy. The plaintiff would claim that final decree was assigned in favour of one N.M.Narayana Moopanar who filed E.P No.12 of 1983 in which the suit property was brought to sale on 24/8/1984. The plaintiff was the auction-purchaser. The sale was confirmed on 16/7/1996. Madasamy Thevar, the 11th defendant in the present suit, had purchased the suit property from D1 to D10 in the year 1981. Since he declined to hand over possession, the auctionpurchaser had to file O.S No.14 of 2014 for declaration and recovery of possession.

(3.) The stand of Madasamy Thevar (D11) was that the decree holders in O.S No.52 of 1973 had assigned the decree in favour of one Gurupackiyam on 18/1/1979 who filed E.P No.4 of 1981. In the meanwhile, he had purchased the suit property vide sale deeds dtd. 13/4/1981 and 18/5/1981. He paid the decreetal amount of Rs.51,826.00 to the second defendant who in turn paid the same to Gurupackiyam. Since the decree was satisfied, memo was filed on 1/3/1983 to that effect and E.P No.4 of 1981 was closed. N.M.Narayana Moopanar had no right to bring the suit property to sale by filing E.P No.12 of 1983. The right to apply for final decree was given only to the plaintiffs (legal heirs of Kutralinga Moopanar, the first mortgagee) in O.S No.52 of 1973. It is true that one Lakhsmanan Chettiar in whose favour a second mortgage was created was impleaded as the 11th defendant in O.S No.52 of 1973. But he had no right to assign the decree in favour of Narayanan Moopanar. The auction that took place pursuant to the steps taken by Narayanan Moopanar is void. Narayanan Moopanar had obtained amendment of the final decree by filing I.A No.128 of 1982. But in the said application, Madasamy Thevar was not impleaded. Madasamy Thevar (D11) contended that the auction-purchaser's remedy stood barred by limitation.