ARUKONATHAN Vs. JAYARAMAN AND ORS.

JUDGEMENT

(1.) THE appellant, who was the second defendant in O.S. No. 318 of 1968: of the file of the Sub -Court, Madurai, attacks the order of the executing Court dismissing his application for setting aside -a judicial sale, on the ground that he bad -failed to furnish security.

(2.) IN the suit, a preliminary mortgage decree was granted in favour of the plaintiffs -mortgagees, for Rs. 8,000 and subsequent interest. Clause (6) of the decree provided that if the decree amount were -paid by defendants 6 to 10 to the plaintiffs, as decreed in Clause (1) defendants 6 to 10 would be entitled to realise the said amount from defendants 1 to 5 with subsequent interest and costs. The decree granted under Clause (1) was a mortgage decree, and the decree granted under Clause (6), in the event of defendants 6 to 10 paying off the mortgage decree, was a money decree passed by way of contribution. Defendants 6 to 10 paid off the mortgage decree in favour of the plaintiffs, and, by virtue of Clause (6) of the decree, became entitled to a simple money decree against defendants 1 to 5 for the same amount as was decreed in favour of the plaintiffs. It was in execution of this decree that the properties of defendants 1 to 5 were brought to sale. The sale itself was held on 22nd January, 1971. Items 1 and 3 were sold at the auction as one lot and purchased by one Angayarkanni, a third party, for Rs. 8,500.

(3.) THE matter was being adjourned several times to enable the petitioner to file a security application. On 16th September, 1971, the following note in the handwriting of the Sub -Judge is found;