S. SANKARANARAYANASWAMI PILLAI Vs. PECHIAMMAL

JUDGEMENT

(1.) The defendant is the appellant. The plaintiff filed a suit for redemption of a mortgage in the following circumstances. The mortgaged property belonged to one Ammaponnu and her minor children. Ammaponnu acting for herself and for her minor children usufructually mortgaged the property in favour of one Ponnammal. Ponnammal borrowed in her turn a sum of Rs. 1,000 from one Meenakshi Ammal on 3rd January 1955., On 5th March, 1953 Ponnammal, the usufructuary mortgagee deposited the mortgage deed with Meenakshi Ammal, her creditor and thereby created a sub-mortgage. Meenakshi Ammal filed O.S. No. 366 of 1962 for recovery of the amount due from Ponnammal and for enforcing the charge. She got an ex parte decree and in execution in E.P.No. 904 of 1964, she brought to sale the sub-mortgage right of Ponnammal. Her husband purchased the sub-mortgage right on 15th March, 1965. The husband is the present defendant who is the appellant here. The sale in favour of the defendant was confirmed on 17th April, 1965 and the defendant took delivery of the property on the 7th February, 1966.

(2.) On 22nd May, 1958 Ponnammal, the original mortgagee who sub-mortgaged her mortgage rights in favour of Meenakshi Ammal, purchased the property from Ammaponnu and others. Thereby the mortgage in favour of the Ponnammal was extinguished and Ponnammal became the full owner of the property. In 1964, the plaintiff purchased the suit property from the said Ponnammal. The plaintiff filed the present suit claiming a right to redeem that mortgage in favour of the defendant.

(3.) The defendant in the suit stated that the sale in favour of the plaintiff was affected by lis pendens as E.P. No. 904 of 1964 was pending, when the plaintiff purchased the property from Ponnammal, so that, he had no right to redeem the mortgage. The trip] Court held that the sale in favour of the plaintiff was affected by lis pendens and therefore dismissed the suit for redemption. The plaintiff appealed and the learned District Judge held that the sale under Exhibit A-2 in favour of the plaintiff was not hit by the rule of lis pendens and that the conclusion of the trial Court to the contrary was erroneous. The learned District Judge therefore held that the plaintiff was entitled to redeem the mortgage. The defendant has brought this appeal questioning this judgment of the learned District Judge.