VEERAPPA CHETTIAR Vs. VEERASWAMI PANDARAM AND ANOTHER

JUDGEMENT

(1.) This is an appeal by the decree holder auction purchaser in O.S. No. 298 of 1957 against the order of the First Additional Subordinate Judge, Cuddalore, allowing M.P. No. 637 of 1961 filed by the judgment debtors for setting aside the sale held on 16th August 1961, under O. 21, R. 90, C.P.C. The father of the respondents -defendants executed an usufructuary mortgage in favour of one Lakshmana on 5th October, 1913, Lakshmana had three brothers. A grandson of Lakshmana filed a partition suit O.S. No. 12 of 1943. The usufructuary mortgage debt was allotted to the share of Veerappa, the son of Rangaswami, one of the brothers of Lakshmana. In 1953, 40 years after the execution of the mortgage the respondents, who are the sons of the original mortgagor, took the properties on oral lease from Veerappa. Veerappa filed O.S. No. 298 of 1957 for arrears of rent due on the oral lease. A decree was passed on 6th September, 1951. The properties were attached; brought to sale and purchased by the decree -holder on 16th August, 1961. Thereupon, the judgment debtors filed M.P. No. 637 of 1961 in O.S. No. 298 of 1957 out of which this second appeal arises for setting aside the sale, mainly on the ground that the properties could not be sold except by way of a separate suit under O. 34, R. 14, C.P.C. The executing Court held that O. 34, R. 14 had no application to this case and dismissed the (sic). On appeal, the lower appellate (sic) held that the decree holder could not (sic) brought the properties to sale without (sic) a suit to enforce the mortgage as (sic) in O. 34, R. 14, C.P.C. It also held (sic) judgment debtors had not waived (sic) to protection under O. 34, (sic) these two findings are questioned in (sic) appeal by the decree holder. O. 34, R. 14 (sic):

(2.) As already stated, the usufructuary mortgage was executed by the father of the respondents on 5th October, 1913, in favour of Lakshmana, one of the brothers. The oral lease, the arrears for which the present suit was filed, was in 1953, 40 years after the execution of the usufructuary mortgage. It may be noted that the mortgagee's right was allotted to one of the brothers' son in a partition suit, and the lease was given by him to the sons of the mortgagor. Taking into consideration the lapse of 40 years, it cannot be stated that, at the time when the usufructuary mortgage was executed, any lease was in the contemplation. The two cannot form part of the same transaction. Further, the lease of the year 1953 could not have been for securing interest due on the mortgage. Taking all the circumstances, I have no hesitation in holding that the mortgage of the year 1913, and the lease of the year 1953, do not form part of the same transaction, and the suit for arrears of rent on the lease in 1953 is not a claim arising under the mortgage.

(3.) Reference was made to Kuttiyal v/s. Sanjiva Rao, A.I.R. 1952 Mad. 877 which was affirmed by a Bench of this Court in Narasimhalu Chettiar v/s. Ramanatha Mudaliar : (1961) 1 M.L.J. 363=74 L.W. 212. In Kuttiyal v/s. Sanjiva Rao, A.I.R. 1952 Mad. 877, it was observed that in order to treat both the documents as one transaction it was not necessary either that both the mortgage and the lease back should have been embodied in one document or that they should have been executed on one and the same date. The learned Judge observed: